Proceeds of Crime II

CRIMINAL JUSTICE ACT, 1994

AN ACT TO MAKE PROVISION FOR THE RECOVERY OF THE PROCEEDS OF DRUG TRAFFICKING AND OTHER OFFENCES, TO CREATE AN OFFENCE OF MONEY LAUNDERING, TO MAKE PROVISION FOR INTERNATIONAL CO-OPERATION IN RESPECT OF CERTAIN CRIMINAL LAW ENFORCEMENT PROCEDURES AND FOR FORFEITURE OF PROPERTY USED IN THE COMMISSION OF CRIME AND TO PROVIDE FOR RELATED MATTERS. [30th June, 1994]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I

Preliminary

Short title.

1.—This Act may be cited as the Criminal Justice Act, 1994.

Commencement.

2.—This Act shall come into operation on such day or days as may be appointed by order or orders of the Minister, either generally or with reference to a particular purpose or provision, and different days may be so appointed for different purposes and different provisions of this Act.

Interpretation.

3.—(1) In this Act—

“benefited from drug trafficking” shall be construed in accordance with section 4 (5) of this Act;

“benefited from an offence other than a drug trafficking offence” shall be construed in accordance with section 9 (4) of this Act;

“confiscation order” means an order made under section 4 (4) or 9 (1) of this Act;

“controlled drug” has the same meaning as in section 2 of the Misuse of Drugs Act, 1977 ;

“Convention state” means a state other than the State that is a party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on the 20th day of December, 1988;

“corresponding law” has the same meaning as in section 20 (2) of the Misuse of Drugs Act, 1977 ;

“dealing with property” shall be construed in accordance with section 24 (8) of this Act;

“defendant” means, for the purposes of the provisions of this Act relating to confiscation, and subject to section 23 (2) (a) of this Act, a person against whom proceedings for the relevant drug trafficking or other offence have been instituted;

“drug trafficking” means doing or being concerned in any of the following, whether in the State or elsewhere, that is to say—

(a) producing or supplying a controlled drug where the production or supply contravenes any regulations made under section 5 of the Misuse of Drugs Act, 1977 , and in force at the material time (whether before or after the commencement of the relevant provision of this Act) or a corresponding law,

(b) transporting or storing a controlled drug where possession of the drug contravenes section 3 of that Act or a corresponding law,

(c) importing or exporting a controlled drug where the importation or exportation contravenes any such regulations as mentioned in paragraph (a) of this definition or a corresponding law,

(d) doing any act, whether in the State or elsewhere and whether before or after the commencement of the relevant provision of this Act, in relation to property obtained, whether directly or indirectly, from anything done in relation to a controlled drug, that amounts to an offence under section 31 of this Act or would have amounted to such an offence if that section had been in operation at the time when the act was done or, in the case of an act done in a country or territory outside the State, would amount or have amounted to such an offence if done in corresponding circumstances in the State (and for the purpose of this definition the references in subsections (1) and (2) of the said section 31 to removing property from the State shall include references to removing it from the country or territory in question), or

(e) using any ship for illicit traffic in controlled drugs in contravention of section 33 or 34 of this Act;

“drug trafficking offence” means any of the following—

(a) an offence under any regulations made under section 5 of the Misuse of Drugs Act, 1977 , involving the manufacture, production, preparation, importation, exportation, supply, offering to supply, distribution or transportation of a controlled drug,

(b) an offence under section 15 of that Act of possession of a controlled drug for unlawful sale or supply,

(c) an offence under section 20 of that Act (assisting in or inducing the commission outside the State of an offence punishable under a corresponding law),

(d) an offence under the Customs Acts in relation to the importation or exportation of a controlled drug or in relation to the fraudulent evasion of any prohibition, restriction or obligation in relation to such importation or exportation,

(e) an offence under section 31 of this Act in relation to the proceeds of drug trafficking,

(f) an offence under section 33 or 34 of this Act, or

(g) an offence of aiding, abetting, counselling or procuring the commission of any of the offences mentioned in paragraphs (a) to (f) of this definition or of attempting or conspiring to commit any such offence or inciting another person to do so;

“enforcement officer” has the meaning assigned to it by paragraph 1 of the First Schedule to this Act;

“forfeiture order” means an order made under section 61 of this Act;

“interest”, in relation to property, includes right;

“Irish ship” has the same meaning as in section 9 of the Mercantile Marine Act, 1955 ;

“Minister” means the Minister for Justice;

“premises” includes any building or any part of a building and any vehicle, vessel or structure;

“proceeds of drug trafficking” has the meaning assigned to it by section 5 (1) (a) of this Act;

“property” includes money and all other property, real or personal, heritable or moveable, including choses in action and other intangible or incorporeal property;

“realisable property” means—

(a) any property held by the defendant, and

(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act,

but does not include property which is the subject of—

(a) an order under section 30 of the Misuse of Drugs Act, 1977 (forfeiture orders), or

(b) an order under section 61 of this Act;

“receiver” means a person appointed as a receiver under section 20 (2) or 24 (7) of this Act;

“restraint order” has the meaning assigned to it by section 24 of this Act;

“ship” includes any vessel used in navigation;

“value of proceeds of drug trafficking” has the meaning assigned to it by section 5 (1) (b) of this Act.

(2) For the purposes of this Act the amount that might be realised at the time a confiscation order is made against the defendant is—

(a) the aggregate of the values at that time of all the realisable property held by the defendant, less

(b) where there are obligations having priority at that time, the aggregate of the amounts payable in pursuance of such obligations,

together with the aggregate of the values at that time of all gifts caught by this Act.

(3) Subject to the provisions of subsections (4) to (12) of this section, for the purposes of this Act the value of property (other than cash) in relation to any person holding the property—

(a) where any other person holds an interest in the property, is—

(i) the market value of the first-mentioned person’s beneficial interest in the property, less

(ii) the amount required to discharge any incumbrance on that interest,

and

(b) in any other case, is its market value.

(4) References in this Act to the value at any time (referred to in subsection (5) of this section as “the material time”) of a person’s proceeds of drug trafficking or, as the case may be, of any property obtained by a person as a result of or in connection with the commission of an offence other than a drug trafficking offence are references to—

(a) the value of the said proceeds or property to the recipient when he obtained them or it, adjusted to take account of subsequent changes in the value of money, or

(b) where subsection (5) of this section applies, the value there mentioned,

whichever is the greater.

(5) If at the material time the recipient holds—

(a) the proceeds or property which he obtained (not being cash), or

(b) property which, in whole or in part, directly or indirectly represents in his hands the proceeds or property which he obtained,

the value referred to in subsection (4) (b) of this section is the value to him at the material time of the proceeds or property mentioned in paragraph (a) of this subsection or, as the case may be, of the proceeds or property mentioned in paragraph (b) of this subsection, so far as it so represents the proceeds or property which he obtained.

(6) Subject to subsection (12) of this section, references in this Act to the value at any time (referred to in subsection (7) of this section as “the material time”) of a gift caught by this Act or to a payment or reward are references to—

(a) the value of the gift, payment or reward to the recipient when he received it adjusted to take account of subsequent changes in the value of money, or

(b) where subsection (7) of this section applies, the value there mentioned,

whichever is the greater.

(7) Subject to subsection (12) of this section, if at the material time the recipient holds—

(a) the property which he received (not being cash), or

(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received,

the value referred to in subsection (6) of this section is the value to him at the material time of the property mentioned in paragraph (a) of this subsection or, as the case may be, of the property mentioned in paragraph (b) of this subsection so far as it so represents the property which he received.

(8) For the purposes of subsection (2) of this section, an obligation has priority at any time if it is an obligation of the defendant to—

(a) pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order, or

(b) pay any sum which would be included among the preferential payments (within the meaning of the Bankruptcy Act, 1988 ) in the defendant’s bankruptcy commencing on the date of the confiscation order or winding up under an order of the court made on that date.

(9) For the purposes of the provisions of this Act relating to drug trafficking, a gift (including a gift made before the commencement of section 4 of this Act) is caught by this Act if—

(a) it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him, or

(b) it was made by the defendant at any time and was a gift of property—

(i) which was received by the defendant in connection with drug trafficking carried on by him or another, or

(ii) which in whole or in part directly or indirectly represented in the defendant’s hands property received by him in that connection.

(10) For the purposes of the provisions of this Act relating to offences other than drug trafficking offences, a gift (including a gift made before the commencement of section 9 of this Act) is caught by this Act if—

(a) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate, and

(b) the court considers it appropriate in all the circumstances to take the gift into account.

(11) The reference in subsection (10) of this section to an offence to which the proceedings for the time being relate includes, where the proceedings have resulted in the conviction of the defendant, a reference to any offence which the court takes into consideration when determining his sentence.

(12) For the purposes of this Act—

(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant, and

(b) in those circumstances, subsections (2) to (11) of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) of this subsection bears to the value of the consideration provided by the defendant.

(13) This Act applies to property wherever situated.

(14) A reference in this Act to an offence includes a reference to an offence committed before the commencement of the provision of this Act in which the reference occurs, but nothing in this Act imposes any duty or confers any power on any court in connection with proceedings against a person for an offence instituted before the commencement of the provision of this Act in which the reference occurs.

(15) A reference in this Act to property obtained, or to a pecuniary advantage derived, in connection with drug trafficking or the commission of an offence includes references to property obtained, or to a pecuniary advantage derived, both in that connection and in some other connection.

(16) The following provisions shall have effect for the interpretation of this Act, namely,

(a) property is held by any person if he holds any interest in it,

(b) references to property held by a person include a reference to property vested in his trustee within the meaning of Part V of the Bankruptcy Act, 1988 or liquidator,

(c) references to an interest held by a person beneficially in property include a reference to an interest which would be held by him beneficially if the property were not so vested,

(d) property is transferred by one person to another if the first person transfers or grants to the other any interest in the property,

(e) proceedings for an offence are instituted—

(i) when a summons or warrant for arrest is issued in respect of that offence,

(ii) when a person is charged with the offence after being taken into custody without a warrant,

and where the application of this section would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times,

(f) proceedings for an offence are concluded—

(i) when the defendant is acquitted on all counts;

(ii) if he is convicted on one or more counts, but no application for a confiscation order is made against him or the court decides not to make a confiscation order in his case; or

(iii) if a confiscation order is made against him in connection with those proceedings, when the order is satisfied,

(g) an application under section 7 or 13 of this Act is concluded—

(i) if the court decides not to make a confiscation order against the defendant, when it makes that decision; or

(ii) if a confiscation order is made against the defendant as a result of that application, when the order is satisfied,

(h) an application under section 8 or 18 of this Act is concluded—

(i) if the court decides not to vary the confiscation order in question, when it makes that decision; or

(ii) if the court varies the confiscation order as a result of the application, when the order is satisfied,

(i) a confiscation order is satisfied when no amount is due under it,

(j) an order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside.

(17) In this Act, a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment (including this Act).

PART II

Confiscation

Confiscation orders: drug trafficking offences.

4.—(1) Where a person has been sentenced or otherwise dealt with by a court in respect of one or more drug trafficking offences of which he has been convicted on indictment, the Director of Public Prosecutions may make, or cause to be made, an application to the court to determine whether the person convicted has benefited from drug trafficking.

(2) An application under subsection (1) of this section may be made at the conclusion of the proceedings at which the person is sentenced or otherwise dealt with or may be made at a later stage.

(3) An application under subsection (1) of this section shall not be made unless it appears to the Director of Public Prosecutions that the person in question has benefited from drug trafficking.

(4) If the court determines that the person in question has benefited from drug trafficking, the court shall determine in accordance with section 6 of this Act the amount to be recovered in his case by virtue of this section and shall make a confiscation order under this section requiring the person concerned to pay that amount.

(5) For the purposes of this Act, a person who has at any time (whether before or after the commencement of this section) received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug trafficking.

(6) The standard of proof required to determine any question arising under this Act as to—

(a) whether a person has benefited from drug trafficking, or

(b) the amount to be recovered in his case by virtue of this section,

shall be that applicable in civil proceedings.

Assessing the proceeds of drug trafficking.

5.—(1) For the purposes of this Act—

(a) any payments or other rewards received by a person at any time (whether before or after the commencement of section 4 of this Act) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and

(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.

(2) The court shall, for the purpose of determining whether the defendant has benefited from drug trafficking and, if he has, of assessing the value of his proceeds of drug trafficking, make the assumptions set out in subsection (4) of this section except that the court shall not make any of the said assumptions if—

(a) the assumption is shown to be incorrect in the case of the defendant, or

(b) it is satisfied that there would be a serious risk of injustice in his case if the assumption were to be made.

(3) Where the court does not apply one or more of the assumptions set out in subsection (4) of this section it shall state its reasons.

(4) The assumptions referred to in subsection (2) of this section are—

(a) that any property appearing to the court—

(i) to have been held by the defendant at any time since his conviction, or

(ii) to have been transferred to him at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him,

was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him,

(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him, and

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.

(5) For the purpose of assessing the value of the defendant’s proceeds of drug trafficking in a case where a confiscation order has previously been made against him, the court shall not take into account any of his proceeds of drug trafficking that are shown to the court to have been taken into account in determining the amount to be recovered under that order.

Amount to be recovered under confiscation order made under section 4 .

6.—(1) Subject to subsection (2) of this section, where a confiscation order has been made under section 4 of this Act, the amount to be recovered under the order shall be equal to the amount assessed by the court to be the value of the defendant’s proceeds of drug trafficking.

(2) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant’s case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised.

Re-assessment of whether defendant has benefited from drug trafficking.

7.—(1) This section applies where an application has previously been made to a court under section 4 of this Act and the court has determined that the defendant has not benefited from drug trafficking.

(2) If the Director of Public Prosecutions has evidence—

(a) which was not considered by the court in making the determination referred to in subsection (1) of this section, but

(b) which the Director of Public Prosecutions believes would have led the court to determine that the defendant had benefited from drug trafficking if it had been considered by the court, he may make, or cause to be made, an application to the court for it to consider that evidence.

(3) If, having considered the evidence, the court is satisfied that it would have determined that the defendant had benefited from drug trafficking if that evidence had been available to it, the court—

(a) shall—

(i) make a fresh determination of whether the defendant benefited from drug trafficking; and

(ii) make a determination under section 4 (4) of this Act of the amount to be recovered by virtue of that section; and

(b) may make a confiscation order under section 4 (4) of this Act.

(4) In considering an application under this section the court may take into account any payment or other reward received by the defendant on or after the determination referred to in subsection (1) of this section, but only if the Director of Public Prosecutions shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

(5) In considering any evidence under this section which relates to any payments or reward to which subsection (4) of this section applies, the court shall not make the assumptions which would otherwise be required by section 5 of this Act.

(6) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the defendant was convicted.

Revised assessment of proceeds of drug trafficking.

8.—(1) This section applies where a court has made a determination under section 4 (4) of this Act of the amount to be recovered in a particular case by virtue of that section referred to in this section as “the current determination”.

(2) Where the Director of Public Prosecutions is of the opinion that the real value of the defendant’s proceeds of drug trafficking was greater than their assessed value, the Director of Public Prosecutions may make, or cause to be made, an application to the court for the evidence on which he has formed his opinion to be considered by the court.

(3) In subsection (2) of this section—

“assessed value” means the value of the defendant’s proceeds of drug trafficking as assessed by the court under section 6 (1) of this Act; and

“real value” means the value of the defendant’s proceeds of drug trafficking which took place—

(a) in the period by reference to which the current determination was made;

or

(b) in any earlier period.

(4) If, having considered the evidence, the court is satisfied that the real value of the defendant’s proceeds of drug trafficking is greater than their assessed value (whether because the real value was higher at the time of the current determination than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination under section 4 (4) of this Act of the amount to be recovered by virtue of that section.

(5) Any determination under section 4 (4) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time when the determination is made.

(6) For any determination under section 4 (4) of this Act by virtue of this section, section 5 (5) of this Act shall not apply in relation to any of the defendant’s proceeds of drug trafficking taken into account in respect of the current determination.

(7) In relation to any such determination—

(a) section 3 (2) of this Act shall have effect as if for “a confiscation order is made against the defendant” there were substituted “of the determination”;

(b) sections 3 (8), 10 (5) (a) and 12 (4) of this Act shall have effect as if for “confiscation order” there were substituted “determination”; and

(c) section 6 (2) of this Act shall have effect as if for “confiscation order is made” there were substituted “determination is made”.

(8) The court may take into account any payment or other reward received by the defendant on or after the date of the current determination, but only if the Director of Public Prosecutions shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

(9) In considering any evidence under this section which relates to any payment or reward to which subsection (8) of this section applies, the court shall not make the assumptions which would otherwise be required by section 5 of this Act.

(10) If, as a result of making the fresh determination required by subsection (4) of this section, the amount to be recovered exceeds the amount set by the current determination, the court may substitute for the amount to be recovered under the confiscation order which was made by reference to the current determination such greater amount as it thinks just in all circumstances of the case.

(11) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the defendant was convicted.

Confiscation orders: offences other than drug trafficking offences.

9.—(1) 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 an application is made, or caused to be made, to the court by the Director of Public Prosecutions the court may, subject to the provisions of this section, make a confiscation order under this section requiring the person concerned to pay such sum as the court thinks fit.

(2) An application under this section may be made if it appears to the Director of Public Prosecutions that the person concerned has benefited from the offence of which he is convicted or from that offence taken together with some other offence (not being a drug trafficking offence) of which he is convicted in the same proceedings or which the court has taken into consideration in determining his sentence.

(3) An application under subsection (1) of this section may be made at the conclusion of the proceedings at which the person is sentenced or otherwise dealt with or may be made at a later stage.

(4) For the purposes of this Act, a person benefits from an offence other than a drug trafficking offence if he obtains property as a result of or in connection with the commission of that offence and his benefit is the value of the property so obtained.

(5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this section as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.

(6) The amount to be recovered by an order under this section shall not exceed—

(a) the amount of the benefit or pecuniary advantage which the court is satisfied that a person has obtained, or

(b) the amount appearing to the court to be the amount that might be realised at the time the order is made,

whichever is the less.

(7) The standard of proof required to determine any question arising under this Act as to—

(a) whether a person has benefited as mentioned in subsection (2) of this section, or

(b) the amount to be recovered in his case by virtue of this section,

shall be that applicable in civil proceedings.

Statements relevant to making confiscation orders.

10.—(1) Where—

(a) an application has been made to a court under section 4 , 7 , 8 , or 9 , of this Act and there is tendered to the court by or on behalf of the Director of Public Prosecutions a statement as to any matters relevant to—

(i) the determination of whether the defendant—

(I) (in the case of a conviction for a drug trafficking offence) has benefited from drug trafficking, or

(II) (in the case of a conviction for an offence other than a drug trafficking offence) has benefited as mentioned in section 9 (4) of this Act, or

(ii) the assessment of the value of his proceeds of drug trafficking or the assessment of the value of his benefits as mentioned in section 9 (4) of this Act, as the case may be, and

(b) the defendant accepts to any extent any allegation in the statement,

the court may, for the purposes of that determination or assessment, treat his acceptance as conclusive of the matters to which it relates.

(2) Nothing in this section shall prevent the Director of Public Prosecutions from making more than one statement.

(3) Where—

(a) a statement is tendered under subsection (1) or (2) of this section, and

(b) the court is satisfied that a copy of that statement has been served on the defendant,

the court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on to refute such allegation.

(4) If the defendant fails in any respect to comply with a requirement under subsection (3) of this section, he may be treated for the purposes of this section as accepting every allegation in the statement, apart from—

(a) any allegation in respect of which he has complied with the requirement, and

(b) (in the case of a conviction for a drug trafficking offence or offences) any allegation that he has benefited from drug trafficking or that any payment or other reward was received by him in connection with drug trafficking carried on by him or another, or

(c) (in the case of a conviction for an offence or offences other than a drug trafficking offence) any allegation that he has benefited from an offence or that any property was obtained by him as a result of or in connection with the commission of an offence.

(5) Where—

(a) there is tendered to the court by the defendant a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made, and

(b) the Director of Public Prosecutions accepts to any extent any allegation in the statement,

the court may, for the purposes of that determination, treat that acceptance as conclusive of the matters to which it relates.

(6) Nothing in this section shall prevent a defendant from making more than one statement.

(7) An allegation may be accepted or a matter indicated for the purposes of this section—

(a) orally before the court,

(b) in writing in accordance with rules of court, or

(c) as the court may direct.

(8) No acceptance by the defendant under this section that any payment or other reward was received by him in connection with drug trafficking carried on by him or another or that he has benefited from an offence other than a drug trafficking offence shall be admissible in evidence in any proceedings for an offence.

Provision of information by defendant.

11.—(1) This section applies where an application has been made or caused to be made to a court by the Director of Public Prosecutions under section 4 , 7 , 8 , or 9 , of this Act.

(2) For the purpose of obtaining information to assist it in carrying out its functions, the court may, at any time, order the defendant to give it such information as may be specified in the order.

(3) An order under subsection (2) of this section may require all, or any specified part, of the required information to be given to the court in such manner, and before such date, as may be specified in the order.

(4) If the defendant fails, without reasonable excuse, to comply with any order under this section, the court may draw such inference from that failure as it considers appropriate.

(5) Where the Director of Public Prosecutions accepts to any extent any allegation made by the defendant in giving to the court information required by an order under this section, the court may treat that acceptance as conclusive of the matters to which it relates.

(6) For the purposes of this section, an allegation may be accepted in such manner as the court may direct.

Supplementary provisions concerning confiscation orders.

12.—(1) When considering whether to make a confiscation order under section 9 of this Act (but not when considering whether to make such an order under section 4 of this Act), the court may take into account any information placed before it showing that a victim of an offence to which the proceedings relate has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with the offence.

(2) Where a court makes a confiscation order, it may direct that payment of the amount to be recovered in respect of the order shall be made forthwith or at some other time specified in the order.

(3) Where a court makes a confiscation order against a defendant in any proceedings, it shall, in respect of any offence of which he is convicted in those proceedings, take account of—

(a) any fine imposed on him,

(b) any order involving any payment by him, or

(c) any forfeiture order made under section 30 of the Misuse of Drugs Act, 1977 , or section 61 of this Act.

(4) If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made (whether by an acceptance under section 10 of this Act or otherwise), the court may issue a certificate giving the opinion of the court as to the matters concerned and shall do so if satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be—

(a) (in the case of a conviction for a drug trafficking offence or offences) the value of the defendant’s proceeds of drug trafficking, or

(b) (in the case of a conviction for an offence or offences other than a drug trafficking offence) the value of the defendant’s benefit from the offence or offences in respect of which the order may be made.

Power of High Court where defendant has died or is absent.

13.—(1) Subsection (2) of this section applies where a person has been convicted on indictment of one or more offences.

(2) If the Director of Public Prosecutions asks it to proceed under this section, the High Court may exercise the powers of a court under section 4 or section 9 of this Act, in the case respectively of a conviction for a drug trafficking offence or a conviction for an offence other than a drug trafficking offence, to make a confiscation order against the defendant if satisfied that the defendant has died or absconded.

(3) Subsection (4) of this section applies where proceedings for one or more offences in respect of which a confiscation order may be made under this Act have been instituted against a person but have not been concluded.

(4) If the Director of Public Prosecutions asks it to proceed under this section, the High Court may exercise the powers of a court under section 4 or section 9 of this Act, where the relevant proceedings have been instituted respectively in respect of a drug trafficking offence or an offence other than a drug trafficking offence, to make a confiscation order against the defendant if satisfied that the defendant has absconded.

(5) The power conferred by subsection (4) of this section may not be exercised at any time before the end of the period of two years beginning with the date which is, in the opinion of the court, the date on which the defendant absconded save where it appears to the High Court that it would be reasonable in the circumstances.

(6) In any proceedings on an application under this section—

(a) sections 5 (2), 10 (3) and 10 (4) of this Act shall not apply,

(b) the court shall not make a confiscation order against a person who has absconded unless it is satisfied that the Director of Public Prosecutions has taken reasonable steps to contact him, and

(c) any person appearing to the court to be likely to be affected by the making of a confiscation order by the court shall be entitled to appear before the court and make representations.

Effect of conviction where High Court has acted under section 13 .

14.—Where the High Court has made a confiscation order by virtue of section 13 of this Act, the court shall, in respect of the offence or any of the offences concerned take account of the following, namely:

(a) any fine imposed on him,

(b) any order involving any payment by him, or

(c) any forfeiture order made under section 30 of the Misuse of Drugs Act, 1977 , or under section 61 of this Act.

Appeal against confiscation order.

15.—(1) An appeal against the making of a confiscation order shall lie to the Court of Criminal Appeal.

(2) If it upholds the appeal, in whole or in part, the court may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if—

(a) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order; and

(b) having regard to all the circumstances of the case, the court considers it to be appropriate.

(3) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.

Variation of confiscation orders.

16.—(1) If, on an application by the defendant or by the Director of Public Prosecutions in respect of a confiscation order, the High Court is satisfied that the value of the realisable property is inadequate for the payment of any amount remaining to be recovered under the order, the court shall substitute for the amount to be recovered under the order such lesser amount as the court thinks just in all the circumstances of the case.

(2) For the purposes of subsection (1) of this section—

(a) in the case of realisable property held by a person who has been adjudged bankrupt the court shall take into account the extent to which any property held by him may be distributed among creditors, and

(b) the court may disregard any inadequacy in the value of the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Act from any risk of realisation under this Act.

Variation of confiscation orders made by virtue of section 13 .

17.—(1) This section applies where—

(a) the High Court has made a confiscation order by virtue of section 13 (4) of this Act, and

(b) the defendant has ceased to be an absconder.

(2) If, on an application by the defendant or the Director of Public Prosecutions in respect of the confiscation order, the High Court is satisfied that—

(a) the value of the defendant’s proceeds of drug trafficking or his benefit as mentioned in section 9 (4) of this Act in the period by reference to which the determination in question was made (“the original value”), or

(b) the amount that might have been realised at the time the confiscation order was made,

was less than the amount ordered to be paid under the confiscation order, the court—

(i) may make a fresh determination of the value of the defendant’s proceeds or benefit under section 4 of this Act in the case of drug trafficking and under section 9 of this Act in the case of an offence other than a drug trafficking offence, and

(ii) may, if it considers it just in all the circumstances, vary the amount to be recovered under the confiscation order.

(3) For any determination under section 4 of this Act by virtue of this section, section 5 (5) shall not apply in relation to any of the defendant’s proceeds of drug trafficking taken into account in determining the original value.

(4) Where the court varies a confiscation order under this section it may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if—

(a) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order; and

(b) having regard to all the circumstances of the case, the court considers it to be appropriate.

(5) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.

(6) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the confiscation order was made.

Increase in value of realisable property.

18.—(1) This section shall have effect where the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of his proceeds of drug trafficking or, as the case may be, the value of the benefit he has obtained from an offence other than a drug trafficking offence.

(2) If, on an application made by the Director of Public Prosecutions, the High Court is satisfied that the amount (“the first amount”) that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased), the court may substitute for the first amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) of this section) as appears to the court to be appropriate having regard to the amount now shown to be realisable.

PART III

Enforcement, etc. of Confiscation Orders

Enforcement of confiscation orders.

19.—(1) Where a court makes a confiscation order, then (without prejudice to the provisions of section 22 of this Act enabling property of the defendant in the hands of a receiver appointed under this Act to be applied in satisfaction of the confiscation order) the order may be enforced by the Director of Public Prosecutions at any time after it is made (or, if the order provides for payment at a later time, then at any time after the later time) as if it were a judgment of the High Court for the payment to the State of the sum specified in the order (or of any lesser sum remaining due under the order), save that nothing in this subsection shall enable a person to be imprisoned.

(2) Subject to subsection (3) of this section, if, at any time after payment of a sum due under a confiscation order has become enforceable in the manner provided for by subsection (1) of this section, it is reported to the High Court, by the Director of Public Prosecutions that any such sum or any part thereof remains unpaid, the court may, without prejudice to the validity of anything previously done under the order or to the power to enforce the order in the future in accordance with subsection (1) of this section, order that the defendant shall be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite to the amount set out therein of the confiscation order remaining unpaid.

(3) An order under subsection (2) of this section shall not be made unless the defendant has been given a reasonable opportunity to make any representations to the court that the order should not be made and the court has taken into account any representations so made and any representations made by the Director of Public Prosecutions in reply.

(4) Any term of imprisonment imposed under subsection (2) of this section shall commence on the expiration of any term of imprisonment for which the defendant is liable under the sentence for the offence in question or otherwise, but shall be reduced in proportion to any sum or sums paid or recovered from time to time under the confiscation order.

TABLE

Amount outstanding under confiscation order

Period of imprisonment

Not exceeding £500

45 days

Exceeding £500 but not exceeding £1,000

3 months

Exceeding £1,000 but not exceeding £2,500

4 months

Exceeding £2,500 but not exceeding £5,000

6 months

Exceeding £5,000 but not exceeding £10,000

9 months

Exceeding £10,000 but not exceeding £20,000

12 months

Exceeding £20,000 but not exceeding £50,000

18 months

Exceeding £50,000 but not exceeding £100,000

2 years

Exceeding £100,000 but not exceeding £250,000

3 years

Exceeding £250,000 but not exceeding £1 million

5 years

Exceeding £1 million

10 years

Realisation of property.

20.—(1) Where—

(a) a confiscation order is made under this Act,

(b) the confiscation order is not subject to appeal, and

(c) the confiscation order has not been satisfied,

the High Court may, on an application by the Director of Public Prosecutions, exercise the powers conferred by subsections (2) to (6) of this section.

(2) The court may appoint a person to be a receiver in respect of realisable property.

(3) The court may empower a receiver appointed under subsection (2) of this section or under section 24 of this Act to take possession of the property subject to such conditions or exceptions as may be specified by the court.

(4) The court may order any person having possession or control of realisable property to give possession of it to the receiver.

(5) The court may empower the receiver to realise any realisable property in such manner as the court may direct.

(6) The court may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of any gift caught by this Act as the court may direct and the court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

(7) The court shall not, in respect of any property, exercise the powers conferred by subsection (3), (4), (5) or (6) of this section unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court.

Interest on sums unpaid under confiscation orders.

21.—(1) Subject to subsection (2) of this section, if any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether forthwith on the making of an order or at the time specified by the court), that person shall be liable to pay interest on that sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order.

(2) The amount of interest payable under subsection (1) of this section shall be disregarded for the purposes of calculating the term of imprisonment to be imposed by virtue of section 19 of this Act.

(3) The rate of interest payable under subsection (1) of this section shall be that for the time being applying to a High Court civil judgment debt.

Application of proceeds of realisation.

22.—(1) Money paid or recovered in respect of a confiscation order (including any variation of such an order) may, to the extent necessary, be applied to meet expenses incurred in exercising any powers under this Act and the remuneration of any person employed for that purpose.

(2) Money paid or recovered in respect of a confiscation order shall, following the payment of any expenses or remuneration in accordance with subsection (1) of this section, be applied towards satisfaction of the confiscation order and paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.

Cases in which restraint orders may be made.

23.—(1) The powers conferred on the High Court by section 24 of this Act shall be exercisable where—

(a) (i) proceedings have been instituted in the State against the defendant for an offence which is a drug trafficking offence or an indictable offence other than a drug trafficking offence or an application has been made in respect of the defendant under section 7 , 8 , 13 or 18 of this Act,

(ii) the proceedings or the application have not or has not been concluded, and

(iii) either a confiscation order has been made or it appears to the court that there are reasonable grounds for thinking that a confiscation order may be made in the proceedings or that in the case of an application under section 7 , 8 , 13 or 18 of this Act the court will be satisfied, as the case may be, as mentioned in section 7 (3), 8 (4), 13 (2), 13 (4) or 18 (2) of this Act,

or

(b) (i) the court is satisfied that proceedings are to be instituted against a person in respect of an offence which is a drug trafficking offence or an offence in respect of which a confiscation order might be made under section 9 of this Act or that an application of a kind mentioned in subsection 1 (a) (i) of this section is to be made in respect of a person, and

(ii) it appears to the court that a confiscation order may be made in connection with the offence or that a court will be satisfied as mentioned in subsection 1 (a) (iii) of this section.

(2) For the purposes of section 24 of this Act, at any time when those powers are exercisable before proceedings have been instituted—

(a) references in this Act to the defendant shall be construed as references to the person referred to in subsection (1) (b) (i) of this section, and

(b) references in this Act to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (1) (b) (i) of this section for an offence which is a drug trafficking offence or an offence in respect of which a confiscation order might be made under section 9 of this Act.

(3) Where the court has made an order under section 24 of this Act by virtue of subsection (1) (b) of this section, the court shall discharge the order if proceedings in respect of the offence are not instituted or the relevant application is not made within such time as the court considers reasonable.

Restraint orders.

24.—(1) The High Court may by order (in this Act referred to as a “restraint order”) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in that order.

(2) Without prejudice to the generality of subsection (1) of this section, a restraint order may make such provision as the court thinks fit for living expenses and legal expenses.

(3) A restraint order may apply—

(a) to all realisable property held by a specified person, whether the property is described in the order or not, and

(b) to realisable property held by a specified person, being property transferred to him after the making of the order.

(4) A restraint order—

(a) may be made only on an application by the Director of Public Prosecutions, which may be made ex parte and otherwise than in public, and

(b) shall provide for notice to be given to persons affected by the order.

(5) A restraint order—

(a) may be discharged or varied in relation to any property, and

(b) shall be discharged on the conclusion of the proceedings or of the application in question.

(6) An application for the discharge or variation of a restraint order may be made by any person affected by it.

(7) Where the High Court has made a restraint order, the court may at any time appoint a receiver—

(a) to take possession of any realisable property, and

(b) in accordance with the court’s directions, to manage or otherwise deal with any property in respect of which he is appointed,

subject to such exceptions and conditions as may be specified by the court, and may require any person having possession or control of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.

(8) For the purposes of this Act, dealing with property held by any person includes (without prejudice to the generality of the expression)—

(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt, and

(b) removing the property from the State.

(9) Where the High Court has made a restraint order, a member of the Garda Síochána or an officer of customs and excise may, for the purpose of preventing any realisable property being removed from the State, seize the property.

(10) Property seized under subsection (9) of this section shall be dealt with in accordance with the court’s directions.

Registration of restraint orders.

25.—(1) Where a restraint order is made, the registrar of the High Court shall, in the case of registered land, furnish the Registrar of Titles with notice of the order and the Registrar of Titles shall thereupon cause an entry to be made in the register under the Registration of Title Act, 1964 , inhibiting, until such time as the order is discharged, any dealing with any registered land or charge which appears to be affected by the order.

(2) Where notice of an order has been given under subsection (1) of this section and the order is varied, the registrar of the High Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall thereupon cause the entry made under subsection (1) of this section to be varied to that effect.

(3) Where notice of an order has been given under subsection (1) of this section and the order is discharged, the registrar of the High Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall cancel the entry made under subsection (1) of this section.

(4) Where a restraint order is made, the registrar of the High Court shall, in the case of unregistered land, furnish the Registrar of Deeds with notice of the order and the Registrar of Deeds shall thereupon cause the notice to be registered in the Registry of Deeds pursuant to the Registration of Deeds Act, 1707.

(5) Where notice of an order has been given under subsection (4) of this section and the order is varied, the registrar of the High Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cause the entry made under subsection (4) of this section to be varied to that effect.

(6) Where notice of an order has been given under subsection (4) of this section and the order is discharged, the registrar of the High Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cancel the entry made under subsection (4) of this section.

(7) Where a restraint order is made which applies to an interest in a company or to the property of a company, the registrar of the High Court shall furnish the Registrar of Companies with notice of the order and the Registrar of Companies shall thereupon cause the notice to be entered in the Register of Companies maintained under the Companies Acts, 1963 to 1990.

(8) Where notice of an order has been given under subsection (7) of this section and the order is varied, the registrar of the High Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cause the entry made under subsection (7) of this section to be varied to that effect.

(9) Where notice of an order has been given under subsection (7) of this section and the order is discharged, the registrar of the High Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cancel the entry made under subsection (7) of this section.

Exercise of powers by High Court or receiver.

26.—(1) This section applies to the powers conferred on the High Court by section 20 or 24 of this Act or on a receiver appointed under either of those sections.

(2) Subject to the provisions of this section, the powers shall be exercised with a view to making available, for satisfying the confiscation order or, as the case may be, any confiscation order that may be made in the defendant’s case, the value for the time being of realisable property held by any person by the realisation of such property.

(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

(4) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of any such gift, to retain or recover the value of any property held by him.

(5) In exercising the powers no account shall be taken of any obligations of the defendant or of the recipient of any such gift that conflict with the obligation to satisfy the confiscation order.

Receivers: supplementary provisions.

27.—Where a receiver takes any action—

(a) in relation to property which is not realisable property, being action which he would be entitled to take if it were such property,

(b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,

he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.

Bankruptcy of defendant, etc.

28.—(1) Where a person who holds realisable property is adjudicated bankrupt—

(a) property for the time being subject to a restraint order made before the order adjudicating him bankrupt, and

(b) any proceeds of property realised by virtue of section 20 (5) or (6) or 24 (7) of this Act, for the time being in the hands of a receiver,

is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act, 1988 .

(2) Where a person has been adjudicated bankrupt, the powers conferred on the High Court or on a receiver by section 20 or 24 of this Act shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift caught by this Act—

(a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when—

(i) proceedings for an offence in respect of which a confiscation order might be made have been instituted against him and have not been concluded, or

(ii) an application has been made in respect of the defendant under section 7 , 8 , 13 , or 18 of this Act and has not been concluded, or

(iii) property of the person to whom the gift was made is subject to a restraint order,

and

(b) any decision as to whether it is void made under any of those sections after the conclusion of the proceedings or of the application shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(4) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before 1st January, 1989, this section shall have effect with the modification that for references to the property of the bankrupt for the purposes of the said Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

Property subject to restraint order dealt with by Official Assignee.

29.—(1) Without prejudice to the generality of any provision of any other enactment, where—

(a) the Official Assignee or a trustee appointed under the provisions of Part V of the Bankruptcy Act, 1988 , seizes or disposes of any property in relation to which his functions are not exercisable because it is for the time being subject to a restraint order, and

(b) at the time of the seizure or disposal he believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of the court or otherwise) to seize or dispose of that property,

he shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence in so acting, and he shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his acting in connection with those proceedings.

(2) Where the Official Assignee or a trustee appointed as aforesaid incurs expenses in respect of such property as is mentioned in paragraph (a) of subsection (1) of this section and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order, he shall be entitled (whether or not he has seized or disposed of that property so as to have a lien) to payment of those expenses under section 22 of this Act.

Winding up of company holding realisable property.

30.—(1) Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for a voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—

(a) property for the time being subject to a restraint order made before the relevant time, and

(b) any proceeds of property realised by virtue of section 20 (5) or (6) or 24 (7) of this Act for the time being in the hands of a receiver.

(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred by section 20 or 24 of this Act on the High Court or on a receiver shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable—

(a) so as to inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) In this section—

“company” means any company which may be wound up under the Companies Acts, 1963 to 1990;

“relevant time” means—

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up,

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

(c) in any other case where such an order has been made, the time of the making of the order.

PART V

Drug Trafficking Offences at Sea

Drug trafficking offences on Irish ships.

33.—Anything which would constitute a drug trafficking offence if done on land in the State shall constitute that offence if done on an Irish ship.

Ships used for drug trafficking.

34.—(1) This section applies to an Irish ship, a ship registered in a Convention state and a ship not registered in any country or territory.

(2) A person shall be guilty of an offence if, on a ship to which this section applies, wherever it may be, he—

(a) has a controlled drug in his possession, or

(b) is in any way knowingly concerned in the carrying or concealing of a controlled drug on the ship,

knowing or having reasonable grounds to suspect that the drug is intended to be imported or has been exported contrary to any regulations made by the Minister for Health under section 5 (1) (a) (ii) of the Misuse of Drugs Act, 1977 , or the law of any state outside the State.

(3) A certificate purporting to be issued by or on behalf of the government of any state other than the State to the effect that the importation or exportation of a controlled drug is prohibited by the law of that state shall in a prosecution under this section be evidence of the matters stated in that certificate without further proof.

(4) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 7 years or to both.

(5) Section 29 (1) of the Misuse of Drugs Act, 1977 (defences generally) is hereby amended by the substitution therefor of the following subsection:

“(1) In any proceedings for an offence under this Act or an offence under section 34 of the Criminal Justice Act, 1994 in which it is proved that the defendant had in his possession or supplied a controlled drug, the defendant shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance, product or preparation in question was the particular controlled drug alleged.”.

Enforcement powers in respect of ships.

35.—(1) The powers conferred on an enforcement officer by the First Schedule to this Act shall be exercisable in relation to any ship to which section 33 or 34 of this Act applies for the purpose of detecting and the taking of appropriate action in respect of the offences mentioned in those sections.

(2) The powers conferred by subsection (1) of this section shall not be exercised outside the landward limits of the territorial seas of the State in relation to a ship registered in a Convention state except with the authority of the Minister for Foreign Affairs and he shall not give his authority unless that state has in relation to that ship—

(a) requested the assistance of the State for the purpose mentioned in subsection (1) of this section, or

(b) authorised the State to act for that purpose.

(3) In giving his authority pursuant to a request or authorisation from a Convention state, the Minister for Foreign Affairs shall impose such conditions or limitations on the exercise of the powers as may be necessary to give effect to any conditions or limitations imposed by that state.

(4) The Minister for Foreign Affairs may, either of his own motion or in response to a request from a Convention state, authorise a Convention state to exercise, in relation to an Irish ship, powers corresponding to those conferred on enforcement officers by the First Schedule to this Act but subject to such conditions or limitations, if any, as he may impose.

(5) Subsection (4) of this section shall be without prejudice to any agreement made, or which may be made, on behalf of the State whereby the State undertakes not to object to the exercise by any other state in relation to an Irish ship of powers corresponding to those conferred by the First Schedule to this Act.

(6) The powers conferred by the First Schedule to this Act shall not be exercised in the territorial seas of any state other than the State without the authority of the Minister for Foreign Affairs and he shall not give his authority unless that state has consented to the exercise of those powers.

Jurisdiction and prosecutions in relation to offences on ships.

36.—(1) Proceedings under section 33 or 34 of this Act or the First Schedule to this Act in respect of an offence on a ship may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.

(2) No such proceedings shall be instituted except by or with the consent of the Director of Public Prosecutions.

(3) Without prejudice to subsection (2) of this section, no proceedings for an offence under section 34 of this Act alleged to have been committed outside the landward limits of the territorial seas of the State on a ship registered in a Convention state shall be instituted except in pursuance of the exercise, with the authority of the Minister for Foreign Affairs, of the powers conferred by the First Schedule to this Act.

(4) Section 11 of the Maritime Jurisdiction Act, 1959 (consent of Minister for Foreign Affairs for prosecutions for certain offences on foreign ships), shall not apply to the proceedings to which subsection (3) of this section relates.

Convention states.

37.—(1) The Minister for Foreign Affairs may by order declare that any state specified in the order is a Convention state.

(2) An order that is in force under subsection (1) of this section shall be evidence that any state specified in the order is a Convention state.

(3) The Minister for Foreign Affairs may by order amend or revoke an order under this section including an order under this subsection.

(4) An order under this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas.

PART VI

Drug Trafficking Money Imported or Exported in Cash

Seizure and detention.

38.—(1) A member of the Garda Síochána or an officer of customs and excise may seize and, in accordance with this section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person’s proceeds of, or is intended by any person for use in, drug trafficking.

(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied—

(a) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and

(b) that detention of the cash beyond forty-eight hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

(3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that—

(a) no period of detention specified in such an order, shall exceed three months beginning with the date of the order; and

(b) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section.

(4) Any application for an order under subsection (2) or (3) of this section may be made by a member of the Garda Síochána or an officer of customs and excise.

(5) At any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfied—

(a) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or

(b) on an application made by any other person, that detention of the cash is not for that or any other reason justified.

(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section—

(a) an application for its forfeiture is made under section 39 of this Act; or

(b) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected,

the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded.

Forfeiture of cash seized under section 38 .

39.—(1) A judge of the Circuit Court may order the forfeiture of any cash which has been seized under section 38 of this Act if satisfied, on an application made while the cash is detained under that section, that the cash directly or indirectly represents any person’s proceeds of, or is intended by any person for use in, drug trafficking.

(2) Any application under this section shall be made, or caused to be made, by the Director of Public Prosecutions.

(3) The standard of proof in proceedings on an application under this section shall be that applicable to civil proceedings; and an order may be made under this section whether or not proceedings are brought against any person for an offence with which the cash in question is connected.

Appeal against section 39 order.

40.—(1) This section applies where an order for the forfeiture of cash (in this section known as “the section 39 order”) is made under section 39 of this Act.

(2) Any party to the proceedings in which the section 39 order is made (other than the Director of Public Prosecutions) may, before the end of the period of 30 days beginning with the date on which it is made, appeal in respect of the order to the High Court.

(3) An appeal under this section shall be by way of a rehearing.

(4) On an application made by the appellant to a judge of the Circuit Court at any time, the judge may order the release of so much of the cash to which the section 39 order relates as he considers appropriate to enable the appellant to meet his legal expenses in connection with the appeal.

(5) When hearing an appeal under this section the High Court may make such order as it considers appropriate.

(6) If it upholds the appeal, the judge may order the release of the cash, or (as the case may be) the remaining cash, together with any accrued interest.

(7) Section 39 (3) of this Act shall apply in relation to a rehearing on an appeal under this section as it applies to proceedings under section 39 of this Act.

Interest.

41.—Cash seized under this Part of this Act and detained for more than forty-eight hours shall, unless required as evidence of an offence, be held in an interest-bearing account and the interest accruing on any such cash shall be added to that cash on its forfeiture or release.

Procedure.

42.—(1) An order under section 38 (2) of this Act shall provide for notice to be given to persons affected by the order.

(2) Provision may be made by rules of court with respect to applications or appeals to any court under this Part of this Act, for the giving of notice of such applications or appeals to persons affected, for the joinder of such persons as parties and generally with respect to the procedure under this Part of this Act before any court.

Interpretation of Part VI .

43.—(1) In this Part of this Act—

“cash” includes coins and notes in any currency;

“exported” in relation to any cash, includes its being brought to any place in the State for the purpose of being exported.

(2) In section 38 of this Act “the prescribed sum” means such sum as may for the time being be prescribed for the purposes of that section by any regulations made under section 44 of this Act.

Prescribed sum for purposes of section 38 .

44.—(1) The Minister may by regulations prescribe a sum for the purposes of section 38 of this Act and in determining under that section whether an amount of foreign currency is not less than the prescribed sum that amount shall be converted at the prevailing rate of exchange.

(2) Where it is proposed to make regulations under subsection (1) of this section, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of such draft has been passed by each such House.

Disposal of cash etc. forfeited under section 39 .

45.—Any money representing cash which is forfeited under this Part of this Act or accrued interest thereon shall, following the payment of any expenses or remuneration that may have arisen in relation to such forfeiture, be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.

PART VII

International Co-operation

External confiscation orders, etc.

46.—(1) The Government may by order designate countries as countries in whose case orders (referred to in this section as “confiscation co-operation orders”) may be made for the confiscation, in accordance with the law of the State, of property which is liable to confiscation in accordance with orders (referred to in this section as “external confiscation orders”) made by a court in the country in question for the purpose—

(a) of recovering payments or other rewards received as a result of or in connection with drug trafficking or their value, or

(b) of recovering—

(i) property obtained as a result of or in connection with conduct corresponding to an offence in respect of which a confiscation order could be made under section 9 of this Act, or

(ii) the value of property so obtained,

or

(c) of depriving a person of a pecuniary advantage obtained as mentioned in paragraph (b) of this subsection.

(2) If an application is made to the High Court by or on behalf of the government of a country designated under subsection (1) of this section (referred to in this section as a “designated country”) and with the consent of the Minister for the making of a confiscation co-operation order pursuant to an external confiscation order made by a court in that country, and the High Court is satisfied that the conditions specified in subsection (3) of this section are satisfied, the court may make a confiscation co-operation order.

(3) The conditions referred to in subsection (2) of this section are that the High Court should—

(a) be satisfied that at the time of the making of the order the external confiscation order is in force and not subject to appeal,

(b) be satisfied, where the person against whom that order was made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them, and

(c) be of the opinion that the making of a confiscation co-operation order corresponding to the external confiscation order would not be contrary to the interests of justice.

(4) In subsection (3) of this section “appeal” includes—

(a) any proceedings by way of discharging or setting aside a judgment, and

(b) an application for a new trial or a stay of execution.

(5) A confiscation co-operation order shall have the like effect as a confiscation order made under section 4 or 9 of this Act save that—

(a) if the external confiscation order was for the confiscation of specified property (other than money), the confiscation co-operation order shall be an order for the recovery of that property (or of so much of the property as is specified in the application), and

(b) if the external confiscation order was for the recovery of a sum of money, the confiscation co-operation order shall be for the recovery of that sum (or, if a lesser sum is specified in the application, then for the recovery of the lesser sum).

(6) The Government may by regulations make such modifications of this Act as appear to it to be necessary or expedient for the purpose of adapting to confiscation co-operation orders any of the provisions of this Act relating to confiscation orders, in particular in relation to enforcement and the taking of provisional measures to prevent any dealing in, or transfer or disposal of, property that may be liable to confiscation in accordance with any confiscation co-operation order that may be made.

(7) The High Court shall revoke the confiscation co-operation order if it appears to the court that the external confiscation order has been satisfied in accordance with the law of the country in which it was made.

(8) Where it is proposed to make regulations under subsection (6) of this section, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of such draft has been passed by each such House.

(9) The Government may amend or revoke an order made under this section including an order made under this subsection.

(10) An order under subsection (1) or (9) of this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas.

External forfeiture orders, etc.

47.—(1) The Government may by order designate countries in whose case orders (referred to in this section as “forfeiture co-operation orders”) may be made for the forfeiture, in accordance with the law of the State, of anything—

(a) in respect of which an offence to which this section applies has been committed or which was used or intended to be used in connection with the commission of such an offence, and

(b) in respect of which an order (referred to in this section as an “external forfeiture order”) has been made by a court in the country in question.

(2) Subject to subsection (3) of this section, if an application is made to the High Court by or on behalf of the government of a country designated under subsection (1) of this section (referred to in this section as a “designated country”) and with the consent of the Minister for the making of a forfeiture co-operation order pursuant to an external forfeiture order made by a court in that country, and the High Court is satisfied that the conditions corresponding to those specified in subsections (3) and (4) of section 46 of this Act are satisfied, the court may make a forfeiture co-operation order.

(3) The court shall not make an order under subsection (2) of this section if a person claiming to be the owner of the thing in question or otherwise interested in it applies to be heard by the court unless an opportunity has been given to him to show cause why the order should not be made.

(4) A forfeiture co-operation order shall have the like effect as a forfeiture order made under section 61 of this Act as specified in subsection (4) of that section, and subsections (7) and (8) of that section shall apply accordingly.

(5) This section applies to any offence which corresponds to—

(a) an offence under the Misuse of Drugs Act, 1977 ,

(b) a drug trafficking offence, or

(c) an offence in respect of which a confiscation order could be made under section 9 of this Act.

(6) The Government may amend or revoke an order made under this section including an order made under this subsection.

(7) An order under subsection (1) or (6) of this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas.

Proof of external order, etc.

48.—(1) On the hearing of an application to the High Court under section 46 of this Act for the making of a confiscation co-operation order, or under section 47 of this Act for the making of a forfeiture co-operation order, a certificate signed by, or with the authority of, a judge of the court which made the external confiscation order or the external forfeiture order in question and recording the making of the order or the giving of any evidence or information in the proceedings leading to the making of the order, shall be admissible as evidence of the making of the order or of any fact contained in the evidence or information without further proof.

(2) A document purporting to be a certificate under subsection (1) of this section shall be deemed to be such a certificate, and to have been signed by the person purporting to have signed it (and, in the case of such a document purporting to have been signed with the authority of a judge of the court, to have been signed in accordance with the authorisation), unless the contrary is shown.

(3) Where a document is admissible in evidence under this section, any document which purports to be a translation of that document shall be admissible as evidence of the translation if it is certified as correct by a person competent to do so; and a document purporting to be a certificate under this subsection shall be deemed to be such a certificate, and to be signed by the person purporting to have signed it, unless the contrary is shown.

Service in State of process issued outside State.

49.—(1) This section shall have effect where the Minister receives from the government of, or other authority in, a country or territory outside the State—

(a) a summons or other process requiring a person to appear as defendant or attend as a witness in criminal proceedings in that country or territory, or

(b) a document issued by a court exercising criminal jurisdiction in that country or territory and recording a decision of the court made in the exercise of that jurisdiction,

together with a request for it to be served on a person in the State.

(2) The Minister may cause the process or document to be served by post or, if the request is for personal service, direct the Commissioner of the Garda Síochána to cause it to be served personally on him.

(3) Service by virtue of this section of any process such as is mentioned in subsection (1) (a) of this section shall not impose any obligation under the law of the State to comply with it.

(4) The Minister shall not cause a summons or other process requiring a person to appear as defendant in criminal proceedings in another country or territory to be served under subsection (1) (a) of this section unless provision is made by the law of that country or territory or by arrangement with the appropriate authority thereof that, if the person concerned appears as defendant in compliance with the summons or process, he will not be proceeded against, sentenced, detained or otherwise restricted in his personal freedom in that country or territory in respect of any offences committed before his departure from the State other than the offences specified in the summons or process unless that person—

(a) having had for a period of 15 consecutive days from the date of his final discharge in respect of the offences specified in the summons or process an opportunity to leave the country or territory concerned, has not done so, or

(b) having left that country or territory, has returned to it.

(5) The Minister shall not cause a summons or other process requiring a person to attend as a witness in criminal proceedings in another country or territory to be served under subsection (1) (a) of this section unless provision is made by the law of that country or territory or by arrangement with the appropriate authority thereof that, if the person concerned attends as a witness in compliance with the summons or process, he will not be proceeded against, sentenced, detained or otherwise restricted in his personal freedom in that country or territory in respect of any offences committed before his departure from the State unless that person—

(a) having had for a period of 15 consecutive days from the date when his presence is no longer required as a witness in the proceedings concerned an opportunity to leave the country or territory concerned, has not done so, or

(b) having left that country or territory, has returned to it.

(6) Any such process served by virtue of this section shall be accompanied by a notice—

(a) stating the effect of subsections (3), (4) and (5) of this section,

(b) indicating that the person on whom it is served may wish to seek advice as to the possible consequences of his failing to comply with the process under the law of the country or territory where it was issued, and

(c) indicating that under that law he may not, as a witness, be accorded the same rights and privileges as would be accorded to him in criminal proceedings in the State.

(7) Where the Commissioner of the Garda Síochána is directed under this section to cause any summons, process or document to be served, he shall, after it has been served, forthwith inform the Minister when and how it was served and (if possible) furnish him with a receipt signed by the person on whom it was served; and if the Commissioner of the Garda Síochána has been unable to cause the summons, process or document to be served, he shall forthwith inform the Minister of that fact and of the reason.

Service outside State of process issued in State.

50.—(1) Process of the following descriptions, that is to say—

(a) a summons requiring a person charged with an offence to appear before a court in the State, and

(b) a summons or order requiring a person to attend before a court in the State for the purpose of giving evidence in criminal proceedings,

may be issued or made notwithstanding that the person in question is outside the State and may be served outside the State in accordance with arrangements made by the Minister for Foreign Affairs.

(2) Service of any process outside the State by virtue of this section shall not impose any obligation under the law of the State to comply with it and accordingly failure to do so shall not constitute contempt of any court or be a ground for issuing a warrant to secure the attendance of the person in question.

(3) Subsection (2) of this section shall operate without prejudice to the service of any process on the person in question if subsequently effected in the State.

(4) Where a person is in the State in compliance with a summons such as is referred to in subsection (1) (a) of this section which has been served on him by virtue of this section, that person shall not be proceeded against, sentenced, detained or otherwise restricted in his personal freedom in the State in respect of any offences committed before his arrival in the State other than the offences specified in the summons unless that person—

(a) having had for a period of 15 consecutive days from the date of his final discharge in respect of the offences specified in the summons an opportunity to leave the State, has not done so, or

(b) having left the State, has returned to it.

(5) Where a person is in the State in compliance with a summons such as is referred to in subsection (1) (b) of this section which has been served on him by virtue of this section, that person shall not be proceeded against, sentenced, detained or otherwise restricted in his personal freedom in the State in respect of any offences committed before his arrival in the State unless that person—

(a) having had for a period of 15 consecutive days from the date when his presence is no longer required as a witness in the proceedings concerned an opportunity to leave the State, has not done so, or

(b) having left the State, has returned to it.

Taking of evidence in State for use outside State.

51.—(1) This section shall have effect where the Minister receives—

(a) from a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory, or

(b) from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies,

a request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.

(2) If the Minister is satisfied—

(a) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and

(b) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there,

he may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request.

(3) For the purpose of satisfying himself as to the matters mentioned in subsection (2) (a) and (b) of this section the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate.

(4) In this section “evidence” includes documents and other articles.

(5) The Minister shall not exercise the power conferred on him by subsection (2) of this section unless provision is made by the law of the country or territory or by arrangement with the appropriate authority therof that any evidence that may be furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the request.

(6) The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in pursuance of a notice under subsection (2) of this section.

(7) The following enactments are hereby repealed, that is to say—

(a) section 24 of the Extradition Act, 1870,

(b) section 5 of the Extradition Act, 1873,

(c) sections 3 (1) (b) and (2) (c) and 4 (1) (b) of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987 , and

(d) section 1 (3) (c) of the Extradition (Amendment) Act, 1994 .

(8) Section 3 of the Genocide Act, 1973 , is hereby amended by the substitution therefor of the following section:

“Extradition and evidence for foreign courts.

3.—(1) No offence which, if committed in the State, would be punishable as genocide or as an attempt, conspiracy or incitement to commit genocide shall be regarded as a political offence or an offence connected with a political offence for the purposes of the Extradition Act, 1965 .

(2) A person shall not be exempt from extradition under the Extradition Act, 1965 , for an offence referred to in subsection (1) of this section on the ground that, under the law in force at the time when, and in the place where, he is alleged to have committed the act of which he is accused or of which he was convicted, he could not have been punished therefor.”.

(9) Notwithstanding subsections (7) and (8) of this section, if before the coming into operation of this section any steps have been taken with a view to the taking of evidence under any of the enactments mentioned in those subsections or the taking of such evidence has begun, the taking of the evidence may be begun or continued as if those subsections had not been enacted.

Obtaining of evidence outside State for use in State.

52.—(1) Where on an application made in accordance with subsection (2) of this section it appears to a judge of any court—

(a) that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and

(b) that proceedings in respect of the offence have been instituted or that the offence is being investigated,

he may issue a letter (“a letter of request”) requesting assistance in obtaining outside the State such evidence as is specified in the letter for use in the proceedings or investigation.

(2) An application under subsection (1) of this section may be made by the Director of Public Prosecutions or, if proceedings have been instituted, by a person charged in those proceedings.

(3) Subject to subsection (4) of this section, a letter of request shall be sent to the Minister for transmission either—

(a) to a court or tribunal specified in the letter and exercising jurisdiction in the place where the evidence is to be obtained, or

(b) to any authority recognised by the government of the country or territory in question as the appropriate authority for receiving requests for assistance of the kind to which this section applies.

(4) In cases of urgency a letter of request may be sent direct to such a court or tribunal as is mentioned in subsection (3) (a) of this section.

(5) In this section “evidence” includes documents and other articles.

(6) Evidence obtained by virtue of a letter of request shall not without the consent of such an authority as is mentioned in subsection (3) (b) of this section be used for any purpose other than specified in the letter; and when any document or other article obtained pursuant to a letter of request is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to such an authority unless that authority indicates that the document or article need not be returned.

(7) A statement of evidence of a witness taken in compliance with a letter of request, and certified by or on behalf of the court, tribunal or authority by which it was taken to be a true and accurate statement of the evidence so taken shall be admissible in the proceedings concerned as evidence of any fact stated therein of which evidence would be admissible in those proceedings.

(8) A document purporting to be a certificate of a court, tribunal or authority under subsection (7) of this section and to be signed by or on behalf of the court, tribunal or authority shall be deemed, for the purposes of this section, to be such a certificate and to be so signed unless the contrary is shown.

(9) Where a document is admissible in evidence under this section, any document which purports to be a translation of that document shall be admissible as evidence of the translation if it is certified as correct by a person competent to do so; and a document purporting to be a certificate under this subsection shall be deemed to be such a certificate, and to be signed by the person purporting to have signed it, unless the contrary is shown.

(10) In considering whether a statement contained in evidence taken pursuant to a letter of request should be excluded in the exercise of the court’s discretion to exclude evidence otherwise admissible the court shall have regard—

(a) to whether it was possible to challenge the statement by questioning the person who made it, and

(b) if the statement was taken in proceedings in the country or territory in question, to whether the law of that country or territory allowed the parties to the proceedings to be legally represented when the evidence was being taken.

Transfer of prisoner in State to give evidence or assist investigation outside State.

53.—(1) The Minister may, if he thinks fit, issue a warrant providing for any person (referred to in this section as “a prisoner”) serving a sentence in a prison or any other place for which rules or regulations may be made under the Prisons Acts, 1826 to 1980, or section 13 of the Criminal Justice Act, 1960 , to be transferred to a country or territory outside the State for the purpose—

(a) of giving evidence in criminal proceedings there, or

(b) of being identified in, or otherwise by his presence assisting, such proceedings or the investigation of an offence.

(2) No warrant shall be issued under this section in respect of any prisoner unless he has consented to being transferred as mentioned in subsection (1) of this section and that consent may be given either—

(a) by the prisoner himself, or

(b) in circumstances in which it appears to the Minister inappropriate, by reason of the prisoner’s physical or mental condition or his youth, for him to act for himself, by a person appearing to the Minister to be an appropriate person to act on his behalf.

(3) The effect of a warrant under this section shall be to authorise—

(a) the taking of the prisoner to a place in the State and his delivery at a place of departure from the State into the custody of a person representing the appropriate authority of the country or territory to which the prisoner is to be transferred, and

(b) the bringing of the prisoner back to the State and his transfer in custody to the place where he is liable to be detained under the sentence to which he is subject.

(4) The Minister shall not issue a warrant under subsection (1) of this section unless provision is made by the law of the country or territory or by arrangement with the appropriate authority thereof that the prisoner will not be proceeded against, sentenced, detained or subjected to any other restriction on his personal freedom in respect of any offence against the law of that country or territory committed before his departure from the State.

(5) Where a warrant has been issued in respect of a prisoner under this section, he shall be deemed to be in legal custody at any time when he is being taken under the warrant to or from any place or being kept in custody under the warrant.

(6) A person authorised by or for the purposes of a warrant issued under this section to take the prisoner to or from any place or to keep him in custody shall have all the powers, authority, protection and privileges of a member of the Garda Síochána.

(7) If the prisoner escapes or is unlawfully at large, he may be arrested without warrant by a member of the Garda Síochána and taken to any place to which he may be taken under a warrant issued under this section.

(8) This section shall apply to a person in custody awaiting trial or sentence and a person committed to prison for default in paying a fine or a sum due under a confiscation order or confiscation co-operation order as it applies to a prisoner and the reference in subsection (3) (b) of this section to a sentence shall be construed accordingly.

Transfer of prisoner outside State to give evidence or assist investigation in State.

54.—(1) This section has effect where—

(a) a witness order has been made or a witness summons has been issued in criminal proceedings in the State in respect of a person (“a prisoner”) who is detained in custody in a country or territory outside the State by virtue of a sentence or order of a court or tribunal exercising criminal jurisdiction in that country or territory, or

(b) it appears to the Minister that it is desirable for a prisoner to be identified in, or otherwise by his presence to assist, such proceedings or the investigation in the State of an offence.

(2) If the Minister is satisfied that the appropriate authority in the country or territory where the prisoner is detained will make arrangements for him to come to the State to give evidence pursuant to the witness order or witness summons or, as the case may be, for the purpose mentioned in subsection (1) (b) of this section, he may issue a warrant under this section.

(3) No warrant shall be issued under this section in respect of any prisoner unless he has consented to being brought to the State to give evidence as aforesaid or, as the case may be, for the purpose mentioned in subsection (1) (b) of this section.

(4) The effect of a warrant under this section shall be to authorise—

(a) the bringing of the prisoner to the State,

(b) the taking of the prisoner to, and his detention in custody at, such place or places in the State as are specified in the warrant, and

(c) the returning of the prisoner to the country or territory from which he has come.

(5) Subsections (5) to (7) of section 53 of this Act shall have effect in relation to a warrant issued under this section as they have effect in relation to a warrant issued under that section.

(6) A person shall not be subject to the controls imposed by the Aliens Act, 1935 , and orders made thereunder in respect of his entry into or presence in the State in pursuance of a warrant under this section but if the warrant ceases to have effect while he is in the State, he shall be treated for the purposes of that Act and the orders made under it as if he had illegally entered the State and the provisions of that Act and any such orders shall apply to that person except that no carrier shall be liable for his expenses of custody.

(7) A person who is in the State pursuant to a warrant issued under this section shall not be proceeded against, sentenced, detained, or subjected to any other restriction on his personal freedom in respect of any offence committed against the law of the State before his arrival in the State.

(8) This section applies to a person detained in custody in a country or territory outside the State in consequence of having been transferred there under any legislative or other arrangements for the repatriation of prisoners as it applies to a person detained as mentioned in subsection (1) of this section.

Search, etc. for material relevant to investigation outside State.

55.—(1) The Government may by order designate countries in relation to which this section shall apply.

(2) Section 63 of this Act shall have effect as if references in that section to drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act included any conduct which is an offence under the law of a country or territory outside the State and would constitute drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act if it had occurred in the State.

(3) If, on an application made by the Director of Public Prosecutions or by a member of the Garda Síochána not below the rank of superintendent, a judge of the District Court is satisfied that—

(a) there are reasonable grounds for believing that an offence under the law of a country in relation to which this section applies has been committed, and

(b) the conduct constituting that offence would, if it had occurred in the State, constitute an offence in respect of which the judge would have power under any enactment to issue a search warrant in relation to any place,

then, subject to subsection (4) of this section, the judge shall have the same power to issue a search warrant authorising entry, search and seizure in relation to that place as he would have under the enactment in question in respect of an offence committed in the State.

(4) No application for a warrant shall be made under this section except in pursuance of a direction given by the Minister in response to a request received by him from the government of a country in relation to which this section applies and made—

(a) on behalf of a court or tribunal exercising criminal jurisdiction in the country in question or a prosecuting authority in that country, or

(b) on behalf of any other authority in that country which appears to the Minister to be an appropriate authority for the purpose of this section,

and any evidence seized by a member of the Garda Síochána by virtue of this section shall be furnished by him to the Minister for transmission to the government of the country concerned or, if that government so requests, to the court, tribunal or authority for which it has been obtained.

(5) If in order to comply with the request it is necessary for any evidence to which this section applies to be accompanied by any certificate, affidavit or other verifying document, the member of the Garda Síochána shall also furnish for transmission such document of that nature as may be specified in the direction given by the Minister.

(6) Where the evidence consists of a document, the original or copy shall be transmitted, and, where it consists of any other article, the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request.

(7) Section 9 of the Criminal Law Act, 1976 , (including, in particular, the restriction in subsection (2) of that section relating to the seizure or retention of any document that was or may have been made for the purpose of legal advice) shall apply in relation to a search carried out under this section as it applies to a search such as is mentioned in that section save that for the reference in subsection (1) of the said section 9 to the retention of a thing for use as evidence in any criminal proceedings there shall be substituted a reference to its retention for transmission in accordance with this section.

(8) The Government may amend or revoke an order made under this section including an order made under this subsection.

(9) An order under subsection (1) or (8) of this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas.

(10) The Minister shall not give a direction under subsection (4) of this section unless provision is made by the law of the country or by arrangement with the appropriate authority thereof that any evidence that may be furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the request and that when such evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it will be returned to him by the court, tribunal or authority that made the request under subsection (4) of this section unless he indicates that the evidence need not be returned.

(11) In this section “evidence” includes documents and other articles.

Provision of co-operation for international war crimes tribunals etc.

56.—(1) The Government may by regulations make such modifications of this Act as appear to it to be necessary or expedient for the purpose of adapting any of the provisions of this Part of this Act to enable the State to provide co-operation under those provisions for an international tribunal or other body established for the prosecution of persons responsible for serious violations of international humanitarian law committed outside the State.

(2) Where it is proposed to make regulations under subsection (1) of this section, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of such draft has been passed by each such House.

PART VIII

Supplementary

Disclosure of information.

57.—(1) Any person to whom or which section 32 of this Act applies (including their directors, employees and officers) shall report to the Garda Síochána where they suspect that an offence under section 31 or 32 of this Act in relation to the business of that person or body has been or is being committed.

(2) A person charged by law with the supervision of a person or body to whom or which section 32 of this Act applies shall report to the Garda Síochána where he or it suspects that an offence under section 31 or 32 of this Act has been or is being committed by a person or body with whose supervision the first mentioned person or body is so charged.

(3) A report may be made to the Garda Síochána under this section in accordance with an internal reporting procedure established by an employer for the purpose of facilitating the operation of this section.

(4) In the case of a person who was in employment at the relevant time, it shall be a defence to a charge of committing an offence under this section that the person charged made a report of the type referred to in subsection (1) or (2) of this section, as the case may be, to another person in accordance with an internal reporting procedure established for the purpose specified in subsection (3) of this section.

(5) A person who fails to comply with subsection (1) or (2) of this section shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

(6) In determining whether a person has complied with any of the requirements of this section, a court may take account of any relevant supervisory or regulatory guidance which applies to that person or any other relevant guidance issued by a body that regulates, or is representative of, any trade, profession, business or employment carried on by that person.

(7) Where a person or body—

(a) discloses in good faith information in the course of making a report under subsection (1) or (2) of this section, or

(b) discloses in good faith to a member of the Garda Síochána or any person concerned in the investigation or prosecution of a drug trafficking offence or an offence in respect of which a confiscation order might be made under section 9 of this Act a suspicion, or any matter on which such a suspicion is based, that any property—

(i) has been obtained as a result of or in connection with the commission of any such offence, or

(ii) derives from property so obtained,

the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by statute or otherwise and shall not involve the person or body making the disclosure (including their directors, employees and officers) in liability of any kind.

Offences of prejudicing investigation.

58.—(1) Where, in relation to an investigation into drug trafficking or into whether a person has benefited from an offence in respect of which a confiscation order might be made, an order under section 63 of this Act has been made, or has been applied for and has not been refused, or a warrant under section 55 or 64 of this Act has been issued, a person who, knowing or suspecting that the investigation is taking place, makes any disclosure which is likely to prejudice the investigation shall be guilty of an offence.

(2) Where a report has been made under subsection (1) or (2) of section 57 of this Act, a person who, knowing or suspecting that such a report has been made, makes any disclosure which is likely to prejudice any investigation arising from the report into whether an offence has been committed under section 31 or 32 of this Act shall be guilty of an offence.

(3) In proceedings against a person for an offence under this section, it is a defence for that person to prove—

(a) that he did not know or suspect that the disclosure to which the proceedings relate was likely to prejudice the investigation, or

(b) that he had lawful authority or reasonable excuse for making the disclosure.

(4) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

Offences by bodies corporate.

59.—(1) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) of this section shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director or manager of the body corporate.

Voidance of dispositions designed to frustrate confiscation, etc.

60.—Where any property of whatever kind and wherever situated, or any interest in such property, becomes subject to confiscation, forfeiture or any measure of restraint or control by virtue of any provision of this Act (including any provision for giving effect to orders made under the law of any country or territory outside the State) or of any action taken under any such provision, no purported disposition of the property or interest, and no other action purporting to be taken in respect of it, by or on behalf of any owner or other person having or claiming to have any interest in it (whether as beneficial owner or trustee or in any other capacity) in reliance on the law of any country or territory outside the State shall have effect so as to prevent the confiscation, forfeiture or measure from taking effect as provided by this Act.

Forfeiture orders.

61.—(1) Subject to the following provisions of this section, where a person is convicted of an offence, and—

(a) the court by or before which he is convicted is satisfied that any property which has been lawfully seized from him or which was in his possession or under his control at the time when he was apprehended for the offence or when a summons in respect of it was issued—

(i) has been used for the purpose of committing, or facilitating the commission of, any offence, or

(ii) was intended by him to be used for that purpose,

or

(b) the offence, or an offence which the court has taken into consideration in determining his sentence, consists of unlawful possession of property which—

(i) has been lawfully seized from him, or

(ii) was in his possession or under his control at the time when he was apprehended for the offence of which he has been convicted or when a summons in respect of that offence was issued,

the court may make an order under this section (referred to in this Act as a “forfeiture order”) in respect of that property, and may do so whether or not it also deals with the offender in respect of the offence in any other way.

(2) In considering whether to make a forfeiture order in respect of any property a court shall have regard—

(a) to the value of the property, and

(b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).

(3) Facilitating the commission of an offence shall be taken for the purposes of this section to include the taking of any steps after it has been committed for the purpose of disposing of any property to which the offence relates or of avoiding, or enabling any other person to avoid, apprehension or detection.

(4) An order under this section shall operate to deprive the offender of his rights, if any, in the property to which it relates, and the property shall (if not already in their possession) be taken into the possession of the Garda Síochána.

(5) A court shall not order property to be forfeited under this section if a person claiming to be the owner of it or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made.

(6) An order under this section shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.

(7) The Police Property Act, 1897 , shall apply, with the following modifications, to property which is in the possession of the Garda Síochána by virtue of this section, that is to say:

(a) no application shall be made under section 1 (1) of that Act by any claimant of the property after the expiration of 6 months from the date on which the order in respect of the property was made under this section, and

(b) no such application shall succeed unless the claimant satisfies the court either that he had 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 for a purpose mentioned in subsection (1) of this section.

(8) In relation to property which is in the possession of the Garda Síochána by virtue of this section, the power to make regulations under section 2 (1) of the Police Property Act, 1897 (disposal of property in cases where the owner of the property has not been ascertained etc.), shall include power to make regulations for disposal in cases where no application by a claimant of the property has been made within the period specified in subsection (7) (a) of this section or no such application has succeeded.

(9) Nothing in this section shall affect the provisions of any enactment whereby property is, or may be ordered to be, forfeited as a result of a conviction for an offence.

Forfeiture for drug offences.

62.— Section 30 (1) of the Misuse of Drugs Act, 1977 (forfeiture on conviction of an offence under that Act) is hereby amended by the substitution therefor of the following subsection:

“(1) Subject to subsection (2) of this section, a court by which a person is convicted of an offence under this Act or a drug trafficking offence (within the meaning of the Criminal Justice Act, 1994), may order anything shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such other manner as the court thinks fit.”.

Order to make material available.

63.—(1) A member of the Garda Síochána may, for the purpose of an investigation into drug trafficking or an offence under section 31 of this Act or an investigation into whether a person has benefited from drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act, apply to a judge of the District Court for an order under subsection (2) of this section in relation to any particular material or material of a particular description.

(2) If on such an application being made the judge is satisfied that the conditions in subsection (4) of this section are fulfilled, he may order that the person who appears to him to be in possession of the material to which the application relates shall—

(a) produce it to a member of the Garda Síochána for him to take away, or

(b) give the member access to it, within such period as the order may specify.

(3) The period to be specified in an order under subsection (2) of this section shall be 7 days unless it appears to the judge that a longer or shorter period would be appropriate in the particular circumstances of the application.

(4) The conditions referred to in subsection (2) of this section are—

(a) that there are reasonable grounds for suspecting that a specified person has carried on drug trafficking or has committed an offence under section 31 of this Act or has benefited from drug trafficking or from an offence in respect of which a confiscation order might be made under section 9 of this Act,

(b) that there are reasonable grounds for suspecting that the material to which the application relates—

(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, and

(ii) does not consist of or include items subject to legal privilege,

and

(c) that there are reasonable grounds for believing that it is in the public interest, having regard—

(i) to the benefit likely to accrue to the investigation if the material is obtained, and

(ii) to the circumstances under which the person in possession of the material holds it,

that the material should be produced or that access to it should be given.

(5) Where a judge makes an order under subsection (2) (b) of this section in relation to material on any premises, he may, on the application of a member of the Garda Síochána, order any person who appears to him to be entitled to grant entry to the premises to allow a member of the Garda Síochána to enter the premises to obtain access to the material.

(6) A judge of the District Court may vary or discharge an order made under this section.

(7) Where the material to which an application under this section relates consists of information contained in a computer—

(a) an order under subsection (2) (a) of this section shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible, and

(b) an order under subsection (2) (b) of this section shall have effect as an order to give access to the material in a form in which it is visible and legible.

(8) Subject to subsection (9) of this section, an order under subsection (2) of this section—

(a) shall not confer any right to production of, or access to, items subject to legal privilege, and

(b) shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.

(9) In the case of material which has been supplied to a Government department or other authority by or on behalf of the government of another state in accordance with an undertaking (express or implied) on the part of the department or authority that the material will be used only for a particular purpose or purposes no order under this section shall have the effect of requiring or permitting the production of, or the giving of access to, the material as mentioned in subsection (2) of this section for a purpose other than one permitted in accordance with the undertaking and the material shall not, without the consent of the other state, be further disclosed or used otherwise than in accordance with the undertaking.

(10) Any person who without reasonable excuse fails or refuses to comply with an order made under this section shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

Authority for search.

64.—(1) A member of the Garda Síochána may, for the purpose of an investigation into drug trafficking or an offence under section 31 of this Act or an investigation into whether a person has benefited from drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act, apply to a judge of the District Court for a warrant under this section in relation to specified premises.

(2) On an application being made under subsection (1) of this section, the judge may issue a warrant authorising a specified member of the Garda Síochána, accompanied by such other members of the Garda Síochána as the member thinks necessary, to enter, by force if necessary, and search the premises if he is satisfied—

(a) that an order made under section 63 of this Act in relation to material on the premises has not been complied with, or

(b) that the conditions in subsection (3) of this section are fulfilled, or

(c) that the conditions in subsection (4) of this section are fulfilled.

(3) The conditions referred to in subsection (2) (b) of this section are—

(a) that there are reasonable grounds for suspecting that a specified person has carried on drug trafficking or has committed an offence under section 31 of this Act or has benefited from drug trafficking or from an offence in respect of which a confiscation order might be made under section 9 of this Act, and

(b) that the conditions in section 63 (4) (b) and (c) of this Act are fulfilled in relation to any material on the premises, and

(c) that it would not be appropriate to make an order under that section in relation to the material because—

(i) it is not practicable to communicate with any person entitled to produce the material, or

(ii) it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated, or

(iii) the investigation for the purpose of which the application is made might be seriously prejudiced unless a member of the Garda Síochána could secure immediate access to the material.

(4) The conditions referred to in subsection (2) (c) of this section are—

(a) that there are reasonable grounds for suspecting that a specified person has carried on drug trafficking or has committed an offence under section 31 of this Act or has benefited from drug trafficking or from an offence in respect of which a confiscation order might be made under section 9 of this Act, and

(b) that there are reasonable grounds for suspecting that there is on the premises material relating to the specified person or to drug trafficking or to an offence under section 31 of this Act or to an offence in respect of which a confiscation order might be made under section 9 of this Act which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularised, and

(c) that—

(i) it is not practicable to communicate with any person entitled to grant entry to the premises, or

(ii) entry to the premises will not be granted unless a warrant is produced, or

(iii) the investigation for the purpose of which the application is made might be seriously prejudiced unless a member of the Garda Síochána arriving at the premises could secure immediate entry to them.

(5) Where a member of the Garda Síochána has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the warrant was issued.

Compensation.

65.—(1) If proceedings are instituted against a person for a drug trafficking offence or offences or for an offence or offences in respect of which a confiscation order might be made under section 9 of this Act and either—

(a) the proceedings do not result in his conviction for any such offence, or

(b) where he is convicted of one or more such offences—

(i) the conviction or convictions concerned are quashed, or

(ii) he is pardoned by the President in respect of the conviction or convictions concerned,

the High Court may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if, having regard to all the circumstances, it considers it appropriate to make such an order.

(2) The court shall not order compensation to be paid in any case under this section unless the court is satisfied—

(a) that there has been some serious default on the part of a person concerned in the investigation or prosecution of the offence concerned, and

(b) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of an order under this Act.

(3) The court shall not order compensation to be paid under this section in any case where it appears to the court that the proceedings would have been instituted or continued even if the serious default had not occurred.

(4) The court may order compensation to be paid under this section to a person with an interest in property affected by a confiscation order or a restraint order notwithstanding that he is not the person who was the subject of the relevant investigation or prosecution.

(5) The compensation to be paid under this section shall be such amount as the court thinks just in all the circumstances of the case.

Compensation, etc. where absconder is acquitted.

66.—(1) This section applies where—

(a) the High Court has made a confiscation order in the exercise of its powers under section 13 (4) of this Act, and

(b) the defendant is subsequently tried for the offence or offences concerned and acquitted on all counts.

(2) The court by which the defendant is acquitted shall cancel the confiscation order.

(3) The High Court may, on the application of a person who held property which was realisable property, order compensation to be paid to the applicant if it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order.

(4) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.

(5) Where the court cancels a confiscation order under this section it may make such consequential or incidental order as it considers appropriate in connection with the cancellation.

Power to discharge confiscation order and order compensation when absconder returns.

67.—(1) This section applies where—

(a) the High Court has made a confiscation order by virtue of section 13 (4) of this Act in relation to an absconder,

(b) the defendant has ceased to be an absconder, and

(c) section 66 of this Act does not apply.

(2) The High Court may, on the application of the defendant, cancel the confiscation order if it is satisfied that—

(a) there has been undue delay in continuing the proceedings in respect of which the power under section 13 (4) of this Act was exercised; or

(b) the Director of Public Prosecutions does not intend to proceed with the prosecution.

(3) Where the High Court cancels a confiscation order under this section it may, on the application of a person who held property which was realisable property, order compensation to be paid to the applicant if it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order.

(4) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.

(5) Where the court cancels a confiscation order under this section it may make such consequential or incidental order as it considers appropriate in connection with the cancellation.

Expenses.

68.—The expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

FIRST SCHEDULE

Enforcement Powers in Respect of Ships

Section 35 .

Preliminary

1. (1) In this Schedule—

“an enforcement officer” means—

(a) a member of the Garda Síochána,

(b) an officer of customs and excise,

(c) a member of the Naval Service of the Defence Forces not below the rank of petty officer, and

(d) any other person of a description specified in an order made for the purposes of this Schedule by the Minister;

“the ship” means the ship in relation to which the powers conferred by this Schedule are exercised.

(2) An order under this Schedule (including an order made under this subparagraph) may be amended or revoked by the Minister.

(3) Every order made under this Schedule shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Power to stop, board, divert and detain a ship

2. (1) An enforcement officer may stop a ship, board it and, if he thinks it necessary for the exercise of his functions, require it to be taken to a port in the State and detain it there.

(2) Where an enforcement officer is exercising his powers with the authority of the Minister for Foreign Affairs given under section 35 of this Act, the officer may require the ship to be taken to a port in the Convention state in question or, if that state has so requested, in any other country or territory willing to receive it.

(3) For any of the purposes of this Schedule an enforcement officer may require the master or any member of the crew to take such action as may be necessary.

(4) If an enforcement officer detains a ship, he shall serve on the master a notice in writing that it is to be detained until the notice is withdrawn by the service on him of a further notice in writing signed by an enforcement officer.

Power to search and obtain information

3. (1) An enforcement officer may search the ship, anyone on it and anything on it including its cargo.

(2) An enforcement officer may require any person on the ship to give information concerning himself or anything on the ship.

(3) Without prejudice to the generality of the powers conferred by this paragraph, an enforcement officer may—

(a) open any container,

(b) make tests and take samples of anything on the ship,

(c) require the production of documents, books or records relating to the ship or anything on it,

(d) make photographs or copies of anything whose production he has power to require.

Powers in respect of suspected offence

4. If an enforcement officer has reasonable grounds to suspect that an offence mentioned in section 33 or 34 of this Act has been committed on a ship to which that section applies he may—

(a) arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence, and

(b) seize and detain anything found on the ship which appears to him to be evidence of the offence,

and section 9 (1) of the Criminal Law Act, 1976 , shall apply in relation to anything seized under this paragraph.

Assistants

5. (1) An enforcement officer may take with him, to assist him in exercising his powers—

(a) any other persons, and

(b) any equipment or materials.

(2) A person whom an enforcement officer takes with him to assist him may perform any of the officer’s functions but only under the officer’s supervision.

Use of reasonable force

6. An enforcement officer may use reasonable force, if necessary, in the performance of his functions.

Evidence of authority

7. An enforcement officer shall, if required, produce evidence of his authority.

Protection of officers

8. An enforcement officer shall not be liable in any civil or criminal proceedings for anything done in the purported performance of his functions under this Schedule if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.

Offences

9. (1) A person shall be guilty of an offence if he—

(a) intentionally obstructs an enforcement officer in the performance of any of his functions under this Schedule,

(b) fails without reasonable excuse to comply with a requirement made by an enforcement officer in the performance of those functions, or

(c) in purporting to give information required by an officer for the performance of those functions—

(i) makes a statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular, or

(ii) intentionally fails to disclose any material particular.

(2) A person guilty of an offence under this paragraph shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine not exceeding £5,000 or to a term of imprisonment not exceeding 5 years or to both.

SECOND SCHEDULE

Taking of Evidence for Use Outside State

Section 51 .

Securing attendance of witnesses

1. The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before that court.

Power to administer oaths

2. The judge may in the proceedings take evidence on oath and may administer an oath for that purpose.

Privilege of witnesses

3. (1) A person shall not be compelled to give in the proceedings any evidence which he could not be compelled to give—

(a) in criminal proceedings in the State, or

(b) subject to subparagraph (2) of this paragraph, in criminal proceedings in the country or territory from which the request for the evidence has come.

(2) Subparagraph (1) (b) of this paragraph shall not apply unless the claim of the person questioned to be exempt from giving the evidence is conceded by the court, tribunal or authority which made the request.

(3) Where such a claim made by any person is not conceded as aforesaid, he may (subject to the other provisions of this paragraph) be required to give the evidence to which the claim relates but the evidence shall not be transmitted to the court, tribunal or authority which requested it if a court in the country or territory in question, on the matter being referred to it, upholds the claim.

(4) Without prejudice to subparagraph (1) of this paragraph, a person shall not be compelled under this Schedule to give any evidence if his doing so would be prejudicial to the security of the State; and a certificate signed by or on behalf of the Minister to the effect that it would be so prejudicial for that person to do so shall be admissible as evidence of that fact.

(5) Without prejudice to subparagraph (1) of this paragraph, a person shall not be compelled under this Schedule to give any evidence in his capacity as an officer or servant of the State.

(6) In this paragraph references to giving evidence include references to answering any question and to producing any document or other article and the reference in subparagraph (3) of this paragraph to the transmission of evidence given by a person shall be construed accordingly.

Transmission of evidence

4. (1) The evidence received by the judge shall be furnished to the Minister for transmission to the court, tribunal or authority that made the request.

(2) If in order to comply with the request it is necessary for the evidence to be accompanied by any certificate, affidavit or other verifying document, the judge shall also furnish for transmission such document of that nature as may be specified in the notice nominating the judge.

(3) Where the evidence consists of a document, the original or a copy shall be transmitted and, where it consists of any other article, the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request.

Supplementary

5. For the avoidance of doubt it is hereby declared that the Bankers’ Books Evidence Act, 1879 , applies to the proceedings as it applies to other proceedings before a court.

6. No order for costs shall be made in the proceedings.

Criminal Justice Act, 1999

PART IV

Amendments Relating to Confiscation Orders

Amendment of section 4 of Act of 1994.

25.—Section 4 of the Act of 1994 is hereby amended by the substitution of the following subsections for subsections (1) to (3):

“(1) Where a person has been sentenced or otherwise dealt with by a court in respect of one or more drug trafficking offences of which he has been convicted on indictment, the court shall, subject to subsections (2) and (3), determine whether the person has benefited from drug trafficking.

(2) A court may decide not to make a determination under subsection (1) of this section where, following such preliminary inquiries, if any, as it may make, it is satisfied that having regard to—

(a) the present means of the convicted person, and

(b) all of the other circumstances of the case, including the matters which are to be taken into account under section 12(3) of this Act,

the amount, if any, which might be recovered under any confiscation order which might be made would not be sufficient to justify proceeding with consideration of the making of such an order.

(3) The duty of a court to make a determination under subsection (1) of this section shall not apply if the convicted person has died or absconded, and accordingly the provisions of section 13 of this Act shall apply in such a case.”.

 

Amendment of section 7 of Act of 1994.

26.—Section 7 of the Act of 1994 is hereby amended—

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

“(1) This section applies where a court has—

(a) determined under section 4 of this Act that a defendant has not benefited from drug trafficking, or

(b) decided under section 4(2) of this Act not to make a determination as to whether a convicted person has benefited from drug trafficking.”,

(b) in subsection (2) by the substitution of the following paragraph for paragraph (a):

“(a) which was not considered by the court in making, or in deciding not to make, the determination referred to in subsection (1) of this section, but”,

(c) in subsection (3)(a) by the substitution of the following subparagraph for subparagraph (i):

“(i) make a determination or a fresh determination, as the case may be, of whether the defendant has benefited from drug trafficking; and”, and

(d) by the substitution of the following subsection for subsection (4):

“(4) In considering an application under this section, the court may take into account any payment or other reward received by the defendant on or after the determination, or the decision not to make a determination, referred to in subsection (1) of this section, but only if the Director of Public Prosecutions shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another person on or before that date.”.

 

 

 

Amendment of section 11 of Act of 1994.

28.—(1) Section 11 of the Act of 1994 is hereby amended by the substitution of the following subsection for subsection (1):

“(1) This section applies where—

(a) a court is engaged in a determination under section 4 of this Act as to whether a convicted person has benefited from drug trafficking or as to any amount to be recovered by virtue of that section, or

(b) an application has been made to a court under section 7, 8 or 9 of this Act.”.

(2) Section 11 of the Act of 1994 is hereby amended by the insertion of the following subsections:

“(7) A defendant who—

(a) fails, without reasonable excuse, to comply with an order under this section, or

(b) gives to the court, in purported compliance with this section, information which the defendant knows or has reason to believe is false or misleading,

shall be guilty of an offence.

(8) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.

(9) Information that is specified in an order under this section and is given to the court in compliance with that order shall not be admissible in evidence in any proceedings for an offence, other than an offence under this section.”.

PROCEEDS OF CRIME ACT 1996

REVISED

Updated to 30 July 2018

AN ACT TO ENABLE THE HIGH COURT, AS RESPECTS THE PROCEEDS OF CRIME, TO MAKE ORDERS FOR THE PRESERVATION AND, WHERE APPROPRIATE, THE DISPOSAL OF THE PROPERTY CONCERNED AND TO PROVIDE FOR RELATED MATTERS. [4th August, 1996]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Annotations

Modifications (not altering text):

C1
Application of Act confirmed not restricted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 10, commenced on enactment.

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.

Interpretation.

1.—(1) In this Act, save where the context otherwise requires—

F1[ ‘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;]

F2[“authorisation” means an authorisation for the detention of property granted under section 1A;]

“authorised officer” means an officer of the Revenue Commissioners authorised in writing by the Revenue Commissioners to perform the functions conferred by this Act on authorised officers;

F2[“bureau officer” has the same meaning as it has in the Criminal Assets Bureau Act 1996;]

F3[ ‘consent disposal order’ means an order under section 3(1A) or 4A(1);]

F3[‘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;]

“the Court” means the High Court;

“dealing”, in relation to property in the possession or control of a person, includes—

(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt,

(b) removing the property from the State, and

(c) in the case of money or other property held for the person by another person, paying or releasing or transferring it to the person or to any other person;

“disposal order” means an order under section 4;

“interest”, in relation to property, includes right;

“interim order” means an order under section 2;

“interlocutory order” means an order under section 3;

“member” means a member of the Garda Síochána not below the rank of Chief Superintendent;

“the Minister” means the Minister for Finance;

F1[‘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;]

F1[‘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;]

F1[‘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);]

F4[(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).]

(2) In this Act—

(a) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other provision is intended, and

(b) a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment.

Annotations

Amendments:

F1
Substituted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 3(a)(i), commenced on enactment.

F2
Inserted (12.08.2016) by Proceeds of Crime (Amendment) Act 2016 (8/2016), s. 2, S.I. No. 437 of 2016.

F3
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 3(a)(ii), commenced on enactment.

F4
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 3(b), commenced on enactment.

F5[

Seizure and detention of property

1A. (1) Where a bureau officer who is—

(a) in a public place,

(b) in any other place under a power of entry authorised by law or to which he or she was expressly or impliedly invited or permitted to be, or

(c) carrying out a search authorised by law,

finds or comes into possession of any property and he or she has reasonable grounds for suspecting that the property—

(i) in whole or in part, directly or indirectly, constitutes proceeds of crime, and

(ii) is of a total value of not less than €5,000,

he or she may seize and detain the property for a period not exceeding 24 hours.

(2) Where a bureau officer has seized and detained property in accordance with subsection (1), the Chief Bureau Officer may, before the expiration of the relevant period of 24 hours, if he or she—

(a) is satisfied that there are reasonable grounds for suspecting that the property, in whole or in part, directly or indirectly, constitutes proceeds of crime,

(b) is satisfied that there are reasonable grounds for suspecting that the total value of the property is not less than €5,000,

(c) is satisfied that the Criminal Assets Bureau is carrying out an investigation into whether there are sufficient grounds to make an application to the Court for an interim order or an interlocutory order in respect of the property, and

(d) has reasonable grounds for believing that the property, in whole or in part, may in the absence of an authorisation, be disposed of or otherwise dealt with, or have its value diminished, before such an application may be made,

authorise the detention of the property by the Criminal Assets Bureau for a further period not exceeding 21 days.

(3) The Chief Bureau Officer shall give notice in writing of an authorisation to any person having possession or control of the property and any other person who appears to be or is affected by it, unless the Chief Bureau Officer is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts.

(4) A notice given under this section shall include the reasons for the authorisation and inform the person to whom the notice is given of his or her right to make an application under section 1B.

(5) The reasons given in a notice under this section need not include details the disclosure of which there are reasonable grounds for believing would prejudice the investigation in respect of which the authorisation is given.

(6) The Chief Bureau Officer may vary or revoke an authorisation and shall revoke an authorisation if any of the grounds on which it was issued no longer exists.

(7) In this section, ‘property’ does not include land.]

Annotations

Amendments:

F5
Inserted (12.08.2016) by Proceeds of Crime (Amendment) Act 2016 (8/2016), s. 3, S.I. No. 437 of 2016.

F6[

Application to Court

1B. (1) A person who has possession or control of property which is the subject of an authorisation, or who is affected by an authorisation, may at any time while the authorisation is in force apply to the Court to have the authorisation varied or revoked, and the Court may, if it is satisfied that—

(a) there are no reasonable grounds for suspecting that the property the subject of the authorisation may, in whole or in part, directly or indirectly, constitute proceeds of crime,

(b) there are no reasonable grounds for suspecting that the total value of the property is not less than €5,000,

(c) there is no reasonable prospect that an application to the Court for an interim order or an interlocutory order in respect of the property, in whole or in part, will be made before or upon the expiration of the authorisation, or

(d) there are no reasonable grounds for believing that the property, in whole or in part, would in the absence of the authorisation, be disposed of or otherwise dealt with, or have its value diminished, before an application for an interim order or an interlocutory order may be made in respect of it,

vary or revoke the authorisation.

(2) Without prejudice to the generality of subsection (1), the Court in dealing with an application under that subsection may make such order that it considers appropriate if satisfied that it is necessary to do so for the purpose of enabling the person—

(a) to discharge the reasonable living and other necessary expenses, including legal expenses in or in relation to legal proceedings, incurred or to be incurred in respect of the person or the person’s dependants, or

(b) to carry on a business, trade, profession or other occupation to which any of the property relates.

(3) An application under subsection (1) may be made only if notice has been given to the Criminal Assets Bureau.

(4) Proceedings under this section shall be heard otherwise than in public.]

Annotations

Amendments:

F6
Inserted (12.08.2016) by Proceeds of Crime (Amendment) Act 2016 (8/2016), s. 3, S.I. No. 437 of 2016.

F7[

Compensation

1C. (1) Where property is detained under an authorisation and—

(a) an application to the Court for an interim order or an interlocutory order in respect of the property, in whole or in part, is not made before the expiration of the authorisation, or

(b) such an application is made but the Court does not make an interim order, or an interlocutory order, as the case may be, in respect of the property,

the Court may, on application to it in that behalf by a person who shows to the satisfaction of the Court that he or she is the owner of the property, award to the person such (if any) compensation payable by the Minister as it considers just in the circumstances in respect of any loss incurred by the person by reason of the authorisation concerned.

(2) An application under subsection (1) may be made only if notice has been given to the Criminal Assets Bureau.]

Annotations

Amendments:

F7
Inserted (12.08.2016) by Proceeds of Crime (Amendment) Act 2016 (8/2016), s. 3, S.I. No. 437 of 2016.

Interim order.

2.—(1) F8[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]—

(a) that a person is in possession or control of—

(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or

(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,

and

(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii), of paragraph (a) is not less than F9[€5,000],

the Court may make an order (“an interim order”) prohibiting the person or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value during the period of 21 days from the date of the making of the order.

(2) An interim order—

(a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and

(b) shall provide for notice of it to be given to the respondent and any other person who appears to be or is affected by it unless the Court is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts.

(3) Where an interim order is in force, the Court, on application to it in that behalf by the respondent or any other person claiming ownership of any of the property concerned may, if it is shown to the satisfaction of the Court that—

(a) the property concerned or a part of it is not property to which subparagraph (i) or (ii) of subsection (1)(a) applies, or

(b) the value of the property to which those subparagraphs apply is less than F9[€5,000],

discharge or, as may be appropriate, vary the order.

F10[(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.]

(4) The Court shall, on application to it in that behalf at any time by the applicant, discharge an interim order.

(5) Subject to subsections (3) and (4), an interim order shall continue in force until the expiration of the period of 21 days from the date of its making and shall then lapse unless an application for the making of an interlocutory order in respect of any of the property concerned is brought during that period and, if such an application is brought, the interim order shall lapse upon—

(a) the determination of the application,

(b) the expiration of the ordinary time for bringing an appeal from the determination,

(c) if such an appeal is brought, the determination or abandonment of it or of any further appeal or the expiration of the ordinary time for bringing any further appeal,

whichever is the latest.

(6) Notice of an application under this section shall be given—

(a) in case the application is under subsection (3), by the respondent or other person making the application to the applicant,

F11[(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, in either case, to any other person in relation to whom the Court directs that notice of the application be given to him or her.

F12[(7) An application under subsection (1) may be made by originating motion.]

Annotations

Amendments:

F8
Substituted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 4(a), commenced on enactment.

F9
Substituted (12.08.2016) by Proceeds of Crime (Amendment) Act 2016 (8/2016), s. 4 (a) and (b), S.I. No. 437 of 2016.

F10
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 4(b), commenced on enactment.

F11
Substituted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 4(c), commenced on enactment.

F12
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 4(d), commenced on enactment.

Modifications (not altering text):

C2
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Editorial Notes:

E1
Previous affecting provisions: subs. (1)(b) and (3)(b) amended (1.1.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 1(3) and schs. 3 and 4, in effect as per s. 1(3); substituted as per F-note above.

Interlocutory order.

3.—(1) F13[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]—

(a) that a person is in possession or control of—

(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or

(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,

and

(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than F14[€5,000],

F13[the Court shall, subject to subsection (1A), make] an order (“an interlocutory order”) prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person—

(I) that that particular 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, or

(II) that the value of all the property to which the order would relate is less than F14[€5,000]:

Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.

F15[(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.]

(2) An interlocutory order—

(a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and

(b) shall provide for notice of it to be given to the respondent and any other person who appears to be or is affected by it unless the Court is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts.

(3) Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent or any other person claiming ownership of any of the property concerned, may, if it is shown to the satisfaction of the Court that the property or a specified part of it is property to which paragraph (I) of subsection (1) applies, or that the order causes any other injustice, discharge or, as may be appropriate, vary the order.

F16[(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.]

(4) The Court shall, on application to it in that behalf at any time by the applicant, discharge an interlocutory order.

(5) Subject to subsections (3) and (4), an interlocutory order shall continue in force until—

(a) the determination of an application for a disposal order in relation to the property concerned,

(b) the expiration of the ordinary time for bringing an appeal from that determination,

(c) if such an appeal is brought, it or any further appeal is determined or abandoned or the ordinary time for bringing any further appeal has expired,

whichever is the latest, and shall then lapse.

(6) Notice of an application under this section shall be given—

F17[(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,]

(b) in case the application is under subsection (3), by the respondent or other person making the application to the applicant,

and, in either case, to any other person in relation to whom the Court directs that notice of the application be given to him or her.

(7) Where a forfeiture order, or a confiscation order, under the Criminal Justice Act, 1994, or a forfeiture order under the Misuse of Drugs Act, 1977, relates to any property that is the subject of an interim order, or an interlocutory order, that is in force, (“the specified property”), the interim order or, as the case may be, the interlocutory order shall—

(a) if it relates only to the specified property, stand discharged, and

(b) if it relates also to other property, stand varied by the exclusion from it of the specified property.

F18[(8) An application under subsection (1) may be made by originating motion.]

Annotations

Amendments:

F13
Substituted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 5(a)(i) and 5(a)(ii), commenced on enactment.

F14
Substituted (12.08.2016) by Proceeds of Crime (Amendment) Act 2016 (8/2016), s. 5 (a) and (b), S.I. No. 437 of 2016.

F15
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 5(b), commenced on enactment.

F16
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 5(c), commenced on enactment.

F17
Substituted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 5(d), commenced on enactment.

F18
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 5(e), commenced on enactment.

Modifications (not altering text):

C3
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Editorial Notes:

E2
Previous affecting provision: subs. (1)(b) and (1)(II) amended (1.1.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 1(3) and schs. 3 and 4, in effect as per s. 1(3); substituted as per F-note above.

Disposal order.

4.—(1) Subject to subsection (2), where an interlocutory order has been in force for not less than 7 years in relation to specified property, the Court, on application to it in that behalf by the applicant, may make an order (“a disposal order”) directing that the whole or, if appropriate, a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Minister or to such other person as the Court may determine.

(2) Subject to subsections (6) and (8), the Court shall make a disposal order in relation to any property the subject of an application under subsection (1) unless it is shown to its satisfaction that that particular 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.

(3) The applicant shall give notice to the respondent (unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts), and to such other (if any) persons as the Court may direct of an application under this section.

(4) A disposal order shall operate to deprive the respondent of his or her rights (if any) in or to the property to which it relates and, upon the making of the order, the property shall stand transferred to the Minister or other person to whom it relates.

(5) The Minister may sell or otherwise dispose of any property transferred to him or her under this section, and any proceeds of such a disposition and any moneys transferred to him or her under this section shall be paid into or disposed of for the benefit of the Exchequer by the Minister.

(6) In proceedings under subsection (1), before deciding whether to make a disposal order, the Court shall give an opportunity to be heard by the Court and to show cause why the order should not be made to any person claiming ownership of any of the property concerned.

(7) The Court, if it considers it appropriate to do so in the interests of justice, on the application of the respondent or, if the whereabouts of the respondent cannot be ascertained, on its own initiative, may adjourn the hearing of an application under subsection (1) for such period not exceeding 2 years as it considers reasonable.

(8) The Court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice.

F19[(9) An application under subsection (1) may be made by originating motion.]

Annotations

Amendments:

F19
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 6, commenced on enactment.

Modifications (not altering text):

C4
Functions transferred and references to “Department of Finance” and “Minister for Finance” in section construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3(a), 5 and sch. 1 part 2, in effect as per art. 1(2).

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of –

(a) the enactments specified in Schedule 1, and

…

are transferred to the Minister for Public Expenditure and Reform.

…

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

…

Schedule 1

Enactments

…

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

…

…

…

No. 30 of 1996

Proceeds of Crime Act 1996

Sections 4, 4A, 16 (1)(c)(ii), 16(2) and 17

…

…

…

F20[

Consent disposal order.

4A.—(1) Where in relation to any property—

(a) an interlocutory order has been in force for a period of less than 7 years, and

(b) an application is made to the Court with the consent of all the parties concerned,

the Court may make an order (a ‘consent disposal order’) directing that the whole or a specified part of the property be transferred to the Minister or to such other person as the Court may determine, subject to such terms and conditions as it may specify.

(2) A consent disposal order operates to deprive the respondent of his or her rights (if any) in or to the property to which the order relates and, on its being made, the property stands transferred to the Minister or that other person.

(3) The Minister—

(a) may sell or otherwise dispose of any property transferred to him or her under this section, and

(b) shall pay into or dispose of for the benefit of the Exchequer the proceeds of any such disposition as well as any moneys so transferred.

(4) Before deciding whether to make a consent disposal order, the Court shall give to any person claiming ownership of any of the property concerned an opportunity to show cause why such an order should not be made.

(5) The Court shall not make a consent disposal order if it is satisfied that there would be a serious risk of injustice if it did so.

(6) Sections 3(7) and 16 apply, with any necessary modifications, in relation to a consent disposal order as they apply in relation to an interlocutory order.

(7) This section is without prejudice to section 3(1A).]

Annotations

Amendments:

F20
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 7, commenced on enactment.

Modifications (not altering text):

C5
Functions transferred and references to “Department of Finance” and “Minister for Finance” in section construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3(a), 5 and sch. 1 part 2, in effect as per art. 1(2).

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of –

(a) the enactments specified in Schedule 1, and

…

are transferred to the Minister for Public Expenditure and Reform.

…

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

…

Schedule 1

Enactments

…

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

…

…

…

No. 30 of 1996

Proceeds of Crime Act 1996

Sections 4, 4A, 16 (1)(c)(ii), 16(2) and 17

…

…

…

Ancillary orders and provision in relation to certain profits or gains, etc.

5.—(1) At any time while an interim order or an interlocutory order is in force, the Court may, on application to it in that behalf by the applicant, make such orders as it considers necessary or expedient to enable the order aforesaid to have full effect.

(2) Notice of an application under this section shall be given by the applicant to the respondent unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts and to any other person in relation to whom the Court directs that notice of the application be given to him or her.

(3) An interim order, an interlocutory order or a disposal order may be expressed to apply to any profit or gain or interest, dividend or other payment or any other property payable or arising, after the making of the order, in connection with any other property to which the order relates.

Annotations

Modifications (not altering text):

C6
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Order in relation to property the subject of interim order or interlocutory order.

6.—(1) At any time while an interim order or an interlocutory order is in force, the Court may, on application to it in that behalf by the respondent or any other person affected by the order, make such orders as it considers appropriate in relation to any of the property concerned if it considers it essential to do so for the purpose of enabling—

F21[(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]

(b) the respondent or that other person to carry on a business, trade, profession or other occupation to which any of that property relates.

(2) An order under this section may contain such conditions and restrictions as the Court considers necessary or expedient for the purpose of protecting the value of the property concerned and avoiding any unnecessary diminution thereof.

(3) Notice of an application under this section shall be given by the person making the application to the applicant and any other person in relation to whom the Court directs that notice of the application be given to him or her.

Annotations

Amendments:

F21
Substituted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 8, commenced on enactment.

Modifications (not altering text):

C7
Application of generality of section not restricted (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 14(5), commenced on enactment.

Interim order freezing certain funds.

14.— …

(4) On application by a member of the Garda Síochána or any other person, the Court may vary an interim 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.

(5) Subsection (4) is not to be construed to limit the generality of section 6 of the Act of 1996 as made applicable by section 20 of this Act.

…

C8
Application of generality of section not restricted (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 15(7), commenced on enactment.

Interlocutory order.

15.— …

(6) On application by a member of the Garda Síochána or any other person, the Court may vary an interlocutory 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.

(7) Subsection (6) is not to be construed to limit the generality of section 6 of the Act of 1996 as made applicable by section 20 of this Act.

…

C9
Application of section extended with modifications (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 20, commenced on enactment.

Application of certain provisions of Act of 1996.

20.—For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

C10
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Receiver.

7.—(1) Where an interim order or an interlocutory order is in force, the Court may at any time appoint a receiver—

(a) to take possession of any property to which the order relates,

(b) in accordance with the Court’s directions, to manage, keep possession or dispose of or otherwise deal with any property in respect of which he or she is appointed,

subject to such exceptions and conditions (if any) as may be specified by the Court, and may require any person having possession or control of property in respect of which the receiver is appointed to give possession of it to the receiver.

(2) Where a receiver takes any action under this section—

(a) in relation to property which is not property the subject of an interim order or an interlocutory order, being action which he or she would be entitled to take if it were such property, and

(b) believing, and having reasonable grounds for believing, that he or she is entitled to take that action in relation to that property,

he or she shall not be liable to any person in respect of any loss or damage resulting from such action except in so far as the loss or damage is caused by his or her negligence.

Annotations

Modifications (not altering text):

C11
Application of section extended with modifications (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 20, commenced on enactment.

Application of certain provisions of Act of 1996.

20.—For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

C12
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Provisions in relation to evidence and proceedings under Act.

8.—(1) Where a member or an authorised officer states—

(a) in proceedings under section 2, on affidavit or, if the Court so directs, in oral evidence, or

F22[(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,]

that he or she believes either or both of the following, that is to say:

(i) that the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime,

(ii) that the respondent is in possession of or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,

and that the value of the property or, as the case may be, the total value of the property referred to in both paragraphs (i) and (ii) is not less than F23[5,000], then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matter referred to in paragraph (i) or in paragraph (ii) or in both, as may be appropriate, and of the value of the property.

(2) The standard of proof required to determine any question arising under this Act shall be that applicable to civil proceedings.

(3) Proceedings under this Act in relation to an interim order shall be heard otherwise than in public and any other proceedings under this Act may, if the respondent or any other party to the proceedings (other than the applicant) so requests and the Court considers it proper, be heard otherwise than in public.

(4) The Court may, if it considers it appropriate to do so, prohibit the publication of such information as it may determine in relation to proceedings under this Act, including information in relation to applications for, the making or refusal of and the contents of orders under this Act and the persons to whom they relate.

(5) Production to the Court in proceedings under this Act of a document purporting to authorise a person, who is described therein as an officer of the Revenue Commissioners, to perform the functions conferred on authorised officers by this Act and to be signed by a Revenue Commissioner shall be evidence that the person is an authorised officer.

F24[(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.]

Annotations

Amendments:

F22
Substituted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 9(a), commenced on enactment.

F23
Substituted (12.08.2016) by Proceeds of Crime (Amendment) Act 2016 (8/2016), s. 6, S.I. No. 437 of 2016.

F24
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 9(b), commenced on enactment.

Modifications (not altering text):

C13
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Editorial Notes:

E3
Previous affect provision: subs. (1) amended (1.1.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 1(3) and schedules 3 and 4, in effect as per s. 1(3); substituted as per F-note above.

Affidavit specifying property and income of respondent.

9.—F25[(1)] At any time during proceedings under section 2 or 3 or while an interim order or an interlocutory order is in force, the Court or, as appropriate, in the case of an appeal in such proceedings, the Supreme Court may by order direct the respondent to file an affidavit in the Central Office of the High Court specifying—

(a) the property of which the respondent is in possession or control, or

(b) the income, and the sources of the income, of the respondent during such period (not exceeding 10 years) ending on the date of the application for the order as the court concerned may specify,

or both.

F25[(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.]

Annotations

Amendments:

F25
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 11, commenced on enactment.

Modifications (not altering text):

C14
Application of section extended with modifications (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 20, commenced on enactment.

Application of certain provisions of Act of 1996.

20.—For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

Registration of interim orders and interlocutory orders.

10.—(1) Where an interim order or an interlocutory order is made, the registrar of the Court shall, in the case of registered land, furnish the Registrar of Titles with notice of the order and the Registrar of Titles shall thereupon cause an entry to be made in the appropriate register under the Registration of Title Act, 1964, inhibiting, until such time as the order lapses, is discharged or is varied so as to exclude the registered land or any charge thereon from the application of the order, any dealing with any registered land or charge which appears to be affected by the order.

(2) Where notice of an order has been given under subsection (1) and the order is varied in relation to registered land, the registrar of the Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall thereupon cause the entry made under subsection (1) of this section to be varied to that effect.

(3) Where notice of an order has been given under subsection (1) and the order is discharged or lapses, the registrar of the High Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall cancel the entry made under subsection (1).

(4) Where an interim order or an interlocutory order is made, the registrar of the Court shall, in the case of unregistered land, furnish the Registrar of Deeds with notice of the order and the Registrar of Deeds shall thereupon cause the notice to be registered in the Registry of Deeds pursuant to the Registration of Deeds Act, 1707.

(5) Where notice of an order has been given under subsection (4) and the order is varied, the registrar of the Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cause the notice registered under subsection (4) to be varied to that effect.

(6) Where notice of an order has been given under subsection (4) and the order is discharged or lapses, the registrar of the Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cancel the registration made under subsection (4).

(7) Where an interim order or an interlocutory order is made which applies to an interest in a company or to the property of a company, the registrar of the Court shall furnish the Registrar of Companies with notice of the order and the Registrar of Companies shall thereupon cause the notice to be entered in the Register of Companies maintained under the Companies Acts, 1963 to 1990.

(8) Where notice of an order has been given under subsection (7) and the order is varied, the registrar of the Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cause the notice entered under subsection (7) to be varied to that effect.

(9) Where notice of an order has been given under subsection (7) and the order is discharged or lapses, the registrar of the Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cancel the entry made under subsection (7).

Annotations

Modifications (not altering text):

C15
Application of section extended with modifications (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 20, commenced on enactment.

Application of certain provisions of Act of 1996.

20.—For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

C16
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Editorial Notes:

E4
Rule for registration of order under section made (1.05.2008) by Registration of Deeds Rules 2008 (S.I. No. 52 of 2008), r. 14(3).

Bankruptcy of respondent, etc.

11.—(1) Where a person who is in possession or control of property is adjudicated bankrupt, property subject to an interim order, an interlocutory order, or a disposal order, made before the order adjudicating the person bankrupt, is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act, 1988.

(2) Where a person has been adjudicated bankrupt, the powers conferred on the Court by section 2 or 3 shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

(3) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before the 1st day of January, 1989, this section shall have effect with the modification that, for the references in subsections (1) and (2) to the property of the bankrupt for the purposes of the Act aforesaid, there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

Annotations

Modifications (not altering text):

C17
Generality of subs. (2) not limited (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 12(3), commenced on enactment.

Interpretation of Part 4.

12.— …

(2) For the purposes of sections 14 to 20, a person is considered to be in possession or control of funds notwithstanding that all or part of them—

(a) are lawfully in the possession or control of a member of the Garda Síochána of any rank or any other person, having been lawfully seized or otherwise taken by any such member or person, or

(b) are subject to an interim order, an interlocutory order or any other order of a court that does either of the following or is to the like effect:

(i) prohibits any person from disposing of or otherwise dealing with the funds or diminishing their value;

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

or

(c) are subject to a letting agreement, the subject of a trust or otherwise occupied by another person or are inaccessible.

(3) Subsection (2) is not to be construed to limit the generality of sections 11(2) and 13(2) of the Act of 1996 as made applicable by section 20 of this Act.

…

C18
Application of section extended with modifications (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 20, commenced on enactment.

Application of certain provisions of Act of 1996.

20.—For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

C19
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Property subject to interim order, interlocutory order or disposal order dealt with by Official Assignee.

12.—(1) Without prejudice to the generality of any provision of any other enactment, where—

(a) the Official Assignee or a trustee appointed under the provisions of Part V of the Bankruptcy Act, 1988, seizes or disposes of any property in relation to which his or her functions are not exercisable because it is subject to an interim order, an interlocutory order or a disposal order, and

(b) at the time of the seizure or disposal he or she believes, and has reasonable grounds for believing, that he or she is entitled (whether in pursuance of an order of a court or otherwise) to seize or dispose of that property,

he or she shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his or her negligence in so acting, and he or she shall have a lien on the property, or the proceeds of its sale, for such of his or her expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his or her remuneration as may reasonably be assigned for his or her acting in connection with those proceedings.

(2) Where the Official Assignee or a trustee appointed as aforesaid incurs expenses in respect of such property as is mentioned in subsection (1)(a) and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to an order under this Act, he or she shall be entitled (whether or not he or she has seized or disposed of that property so as to have a lien) to payment of those expenses.

Annotations

Modifications (not altering text):

C20
Application of section extended with modifications (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 20, commenced on enactment.

Application of certain provisions of Act of 1996.

20.—For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

C21
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Winding up of company in possession or control of property the subject of interim order, interlocutory order or disposal order.

13.—(1) Where property the subject of an interim order, an interlocutory order or a disposal order made before the relevant time is in the possession or control of a company and an order for the winding up of the company has been made or a resolution has been passed by the company for a voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to the property.

(2) Where, in the case of a company, an order for its winding up has been made or such a resolution has been passed, the powers conferred by section 2 or 3 on the Court shall not be exercised in relation to any property held by the company in relation to which the functions of the liquidator are exercisable—

(a) so as to inhibit him or her from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) In this section—

“company” means any company which may be wound up under the Companies Acts, 1963 to 1990;

“relevant time” means—

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up,

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

(c) in any other case where such an order has been made, the time of the making of the order.

Annotations

Modifications (not altering text):

C22
Generality of subs. (2) not limited (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 12(3), commenced on enactment.

Interpretation of Part 4.

12.— …

(2) For the purposes of sections 14 to 20, a person is considered to be in possession or control of funds notwithstanding that all or part of them—

(a) are lawfully in the possession or control of a member of the Garda Síochána of any rank or any other person, having been lawfully seized or otherwise taken by any such member or person, or

(b) are subject to an interim order, an interlocutory order or any other order of a court that does either of the following or is to the like effect:

(i) prohibits any person from disposing of or otherwise dealing with the funds or diminishing their value;

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

or

(c) are subject to a letting agreement, the subject of a trust or otherwise occupied by another person or are inaccessible.

(3) Subsection (2) is not to be construed to limit the generality of sections 11(2) and 13(2) of the Act of 1996 as made applicable by section 20 of this Act.

…

C23
Application of section extended with modifications (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 20, commenced on enactment.

Application of certain provisions of Act of 1996.

20.—For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

C24
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996 , could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Immunity from proceedings.

14.—No action or proceedings of any kind shall lie against a bank, building society or other financial institution or any other person in any court in respect of any act or omission done or made in compliance with an order under this Act.

Annotations

Modifications (not altering text):

C25
Application of section extended with modifications (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 20, commenced on enactment.

Application of certain provisions of Act of 1996.

20.—For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

C26
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Seizure of certain property.

15.—(1) Where an order under this Act is in force, a member of the Garda Síochána or an officer of customs and excise may, for the purpose of preventing any property the subject of the order being removed from the State, seize the property.

(2) Property seized under this section shall be dealt with in accordance with the directions of the Court.

Annotations

Modifications (not altering text):

C27
Application of section extended with modifications (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 20, commenced on enactment.

Application of certain provisions of Act of 1996.

20.—For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

C28
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996 , could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

Compensation.

16.—(1) Where—

(a) an interim order is discharged or lapses and an interlocutory order in relation to the matter is not made or, if made, is discharged (otherwise than pursuant to section 3(7)),

(b) an interlocutory order is discharged (otherwise than pursuant to section 3(7)) or lapses and a disposal order in relation to the matter is not made or, if made, is discharged,

(c) an interim order or an interlocutory order is varied (otherwise than pursuant to section 3(7)) or a disposal order is varied on appeal,

the Court may, on application to it in that behalf by a person who shows to the satisfaction of the Court that—

(i) he or she is the owner of any property to which—

(I) an order referred to in paragraph (a) or (b) related, or

(II) an order referred to in paragraph (c) had related but, by reason of its being varied by a court, has ceased to relate,

and

(ii) the property does not constitute, directly or indirectly, proceeds of crime or was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, award to the person such (if any) compensation payable by the Minister as it considers just in the circumstances in respect of any loss incurred by the person by reason of the order concerned.

(2) The Minister shall be given notice of, and be entitled to be heard in, any proceedings under this section.

Annotations

Modifications (not altering text):

Modifications (not altering text):

C29
Functions transferred and references to “Department of Finance” and “Minister for Finance” in subss. (1)(c)(ii) and (2) construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3(a), 5 and sch. 1 part 2, in effect as per art. 1(2).

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of –

(a) the enactments specified in Schedule 1, and

…

are transferred to the Minister for Public Expenditure and Reform.

…

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

…

Schedule 1

Enactments

…

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

…

…

…

No. 30 of 1996

Proceeds of Crime Act 1996

Sections 4, 4A, 16 (1)(c)(ii), 16(2) and 17

…

…

…

C30
Application of section extended with modifications (10.11.1998) by International War Crimes Tribunals Act 1998 (40/1998), s. 31(3), commenced on enactment.

Orders respecting property.

31.— …

(2) Where, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, the High Court is satisfied that—

(a) an international tribunal order referred to in subsection (1)(a) has been received by the Minister, and

(b) at the time of making the interim order under this subsection the international tribunal order is in force and is not subject to appeal,

the Court, for the purposes of the preservation and protection of the property to which the international tribunal order relates, may, regardless of the value of the property but subject to subsection (5), make an interim order containing any terms that, under section 2 (1) and (2) of the Proceeds of Crime Act, 1996, could be included in an interim order made under that Act if the value of the property were not less than £10,000.

(3) For the purposes mentioned in subsection (2) of this section, sections 2 (3) to (6), 3 (1) to (6), 5, 6, 7, 8 and 10 to 16 of the Proceeds of Crime Act, 1996, shall apply with the following modifications and any other necessary modifications, as if an application made under this section had been made under that Act:

…

F26[

Admissibility of certain documents.

16A.—(1) The following documents are admissible in any proceedings under this Act, without further proof, as evidence of any fact therein of which direct oral evidence would be admissible:

(a) a document constituting part of the records of a business or a copy of such a document;

(b) a deed;

(c) a document purporting to be signed by a person on behalf of a business and stating—

(i) either—

(I) that a designated document or documents constitutes or constitute part of the records of the business or is or are a copy or copies of such a document or documents, or

(II) that there is no entry or other reference in those records in relation to a specified matter, and

(ii) that the person has personal knowledge of the matters referred to in subparagraph (i).

(2) Evidence that is admissible by virtue of subsection (1) shall not be admitted if the Court is of the opinion that in the interests of justice it ought not to be admitted.

(3) This section is without prejudice to any other enactment or any rule of law authorising the admission of documentary evidence.

(4) In this section—

‘business’ includes—

(a) an undertaking not carried on for profit, and

(b) a public authority;

‘deed’ means any document by which an estate or interest in land is created, transferred, charged or otherwise affected and includes a contract for the sale of land;

‘document’ includes a reproduction in legible form of a record in non-legible form;

‘public authority’ has the meaning given to it by section 2(1) of the Local Government Act 2001 and includes a local authority within the meaning of that section;

‘records’ includes records in non-legible form and any reproduction thereof in legible form.]

Annotations

Amendments:

F26
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 12, commenced on enactment.

F27[

Corrupt enrichment order.

16B.—(1) For the purposes of this section—

(a) a person is corruptly enriched if he or she derives a pecuniary or other advantage or benefit as a result of or in connection with corrupt conduct, wherever the conduct occurred;

F28[(b)‘corrupt conduct’ is any conduct which at the time it occurred was an offence under the Prevention of Corruption Acts 1889 to 2010, the Official Secrets Act 1963, the Ethics in Public Office Act 1995 or the Criminal Justice (Corruption Offences) Act 2018;]

(c) ‘property’ includes—

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

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

(iii) property situated outside the State,

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

(2) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of subsection (5), that a person (a ‘defendant’) has been corruptly enriched, the Court may make an order (a ‘corrupt enrichment order’) directing the defendant to pay to the Minister or such other person as the Court may specify an amount equivalent to the amount by which it determines that the defendant has been so enriched.

(3) Where—

(a) the defendant is in a position to benefit others in the exercise of his or her official functions,

(b) another person has benefited from the exercise, and

(c) the defendant does not account satisfactorily for his or her property or for the resources, income or source of income from which it was acquired,

it shall be presumed, until the contrary is shown, that the defendant has engaged in corrupt conduct.

(4) In any proceedings under this section the Court may, on application to it ex parte in that behalf by the applicant, make an order prohibiting the defendant or any other person having notice of the order from disposing of or otherwise dealing with specified property of the defendant or diminishing its value during a period specified by the Court.

(5) Where in any such proceedings a member or an authorised officer states on affidavit or, where the respondent requires the deponent to be produced for cross-examination or the Court so directs, in oral evidence that he or she believes that the defendant—

(a) has derived a specified pecuniary or other advantage or benefit as a result of or in connection with corrupt conduct,

(b) is in possession or control of specified property and that the property or a part of it was 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 or a part of it was acquired, directly or indirectly, with or in connection with the property referred to in paragraph (b),

then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matters referred to in any or all of paragraphs (a) to (c), as may be appropriate.

(6) (a) In any such proceedings, on an application to it in that behalf by the applicant, the Court may make an order directing the defendant to file an affidavit specifying—

(i) the property owned by the defendant, or

(ii) the income and sources of income of the defendant, or

(iii) both such property and such income or sources.

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

(7) Sections 14 to 14C F29[of the Criminal Assets Bureau Act 1996] shall apply, with the necessary modifications, in relation to assets or proceeds deriving from unjust enrichment as they apply to assets or proceeds deriving from criminal conduct.

(8) The standard of proof required to determine any question arising in proceedings under this section as to whether a person has been corruptly enriched and, if so, as to the amount of such enrichment shall be that applicable in civil proceedings.

(9) The rules of court applicable in civil proceedings shall apply in relation to proceedings under this section.]

Annotations

Amendments:

F27
Inserted (12.02.2005) by Proceeds of Crime (Amendment) Act 2005 (1/2005), s. 12, commenced on enactment.

F28
Substituted (30.07.2018) by Criminal Justice (Corruption Offences) Act 2018 (9/2018), s. 24, S.I. No. 298 of 2018.

F29
Inserted (1.08.2006) by Criminal Justice Act 2006 (26/2006), s. 189, S.I. No. 390 of 2006

Expenses.

17.—The expenses incurred by the Minister and (to such extent as may be sanctioned by the Minister) by the Garda Síochána and the Revenue Commissioners in the administration of this Act shall be paid out of moneys provided by the Oireachtas.

Annotations

Modifications (not altering text):

Modifications (not altering text):

C31
Functions transferred and references to “Department of Finance” and “Minister for Finance” in section construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3(a), 5 and sch. 1 part 2, in effect as per art. 1(2).

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of –

(a) the enactments specified in Schedule 1, and

…

are transferred to the Minister for Public Expenditure and Reform.

…

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

…

Schedule 1

Enactments

…

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

…

…

…

No. 30 of 1996

Proceeds of Crime Act 1996

Sections 4, 4A, 16 (1)(c)(ii), 16(2) and 17

…

…

…

Short title.

18.—This Act may be cited as the Proceeds of Crime Act, 1996.

Acts Referred to

Bankruptcy Act, 1988

1988, No. 27

Companies Acts, 1963 to 1990

Criminal Justice Act, 1994

1994, No. 15

Misuse of Drugs Act, 1977

1977, No. 12

Registration of Deeds Act, 1707

6. Anne c. 2

Registration of Title Act, 1964

1964, No. 16

 

 

 

 

Proceeds of Crime (Amendment) Act 2005

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.”.

 

 

 

Criminal Justice (Terrorist Offences) Act 2005

Interlocutory order.

15.—(1) If, on application by a member of the Garda Síochána, it appears to the High Court on evidence tendered by the applicant that a person is in possession or control of funds that were being used or may be intended for use in committing or facilitating the commission of an offence under section 6 or 13 , the Court shall, subject to subsection (2) of this section, make an order prohibiting the respondent, any other specified person or any other person having notice of the order from—

(a) disposing of or otherwise dealing with all or, where appropriate, a specified part of the funds, or

(b) diminishing the value of the funds,

unless the Court is satisfied, on evidence tendered by the respondent or any other person, that the funds are not being used or intended for use in committing or facilitating the commission of an offence under section 6 or 13 .

(2) The Court shall not make an interlocutory order if it is satisfied that there would be a serious risk of injustice.

(3) Evidence tendered by the applicant for an interlocutory order may consist of or include evidence admissible by virtue of section 18 .

(4) An interlocutory order—

(a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and

(b) shall provide for notice of the order to be given to the respondent and any other person who appears to be or is affected by it unless the Court is satisfied that it is not reasonably possible to ascertain their whereabouts.

(5) On application by the respondent or any other person claiming ownership of the funds concerned, the Court may discharge or, as may be appropriate, vary an order that is in force if satisfied that—

(a) the funds concerned, or a part of them, are not funds that are being used or may be intended for use in committing or facilitating the commission of an offence under section 6 or 13 , or

(b) the order causes any other injustice.

(6) On application by a member of the Garda Síochána or any other person, the Court may vary an interlocutory 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.

(7) Subsection (6) is not to be construed to limit the generality of section 6 of the Act of 1996 as made applicable by section 20 of this Act.

(8) On application at any time by a member of the Garda Síochána, the Court shall discharge an interlocutory order.

(9) Subject to subsections (5), (6) and (12), an interlocutory order continues in force until—

(a) the determination of an application for a disposal order in relation to the funds concerned,

(b) the expiry of the ordinary time for bringing an appeal from that determination, or

(c) if such an appeal is brought, the determination or abandonment of the appeal or any further appeal or the expiry of the ordinary time for bringing any further appeal,

whichever is the latest.

(10) Notice of an application under subsection (1) for an interlocutory order or of an application under subsection (6) for the variation, or under subsection (8) for the discharge, of an interlocutory order shall be given by the applicant to—

(a) the respondent unless the Court is satisfied that it is not reasonably possible to ascertain the respondent’s whereabouts, and

(b) any other person to whom the Court directs that notice be given.

(11) Notice of an application under subsection (5) to discharge or vary an interlocutory order shall be given by the respondent or other person making the application to—

(a) the member of the Garda Síochána who applied for the interlocutory order, and

(b) such other (if any) persons as the Court may direct.

(12) Where a forfeiture order, or a confiscation order, under the Act of 1994 relates to any funds that are the subject of an interlocutory order that is in force—

(a) the interlocutory order is discharged, if it relates only to the funds that are the subject of the forfeiture order or the confiscation order, as the case may be, and

(b) the interlocutory order is varied by the exclusion from it of the other funds, if it relates to other funds in addition to the funds that are the subject of the forfeiture order or the confiscation order, as the case may be.

 

Amendment of section 3 of Act of 1994.

21.—Section 3 of the Act of 1994 is amended as follows:

(a) in subsection (1) by inserting the following:

“ ‘Act of 2005’ means the Criminal Justice (Terrorist Offences) Act 2005;”;

(b) in subsection (1) by substituting the following for the definition of “confiscation order”;

“ ‘confiscation order’ means an order made under section 4(4), 8A(5) or 9(1) of this Act;”;

(c) in subsection (1) by substituting the following for the definition of “defendant”:

“ ‘defendant’ means, for the purposes of any provision of this Act relating to confiscation, and subject to section 23(2)(a) of this Act, a person against whom proceedings for the relevant drug trafficking offence, offence of financing terrorism or other offence have been instituted;”;

(d) in subsection (1) by inserting the following definitions:

“ ‘funds’ has the meaning given by section 12 of the Act of 2005;”;

“ ‘funds subject to confiscation’ has the meaning given by section 8A(2) of this Act;”;

“ ‘offence of financing terrorism’ means an offence under section 13 of the Act of 2005;”;

“ ‘proceeds’, in relation to an offence of financing terrorism, means any funds derived from or obtained, directly or indirectly, through the commission of that offence, including payments and rewards;”;

(e) in subsection (1) by substituting the following for the definition of “property”:

“ ‘property’ includes money and all other property, real or personal, heritable or moveable, including choses-in-action and other intangible or incorporeal property and, in relation to an offence of financing terrorism, includes funds;”;

(f) in subsection (1) by inserting the following definition:

“ ‘value of funds subject to confiscation’ has the meaning given by section 8B(1) of this Act;”;

(g) by inserting the following after subsection (9):

“(9A) For the purposes of the provisions of this Act relating to an offence of financing terrorism, a gift (including a gift made before the commencement of section 8A of this Act) is caught by this Act if—

(a) it was made by the defendant at any time since the beginning of a period of 6 years ending when proceedings in respect of that offence were instituted against the defendant, or

(b) it was made by the defendant at any time and was a gift of property—

(i) which was received by the defendant in connection with an offence of financing terrorism committed by the defendant or another person, or

(ii) which in whole or in part directly or indirectly represented in the defendant’s hands funds received by the defendant in connection with an offence of financing terrorism.”;

(h) in subsection (16)(g) by substituting “an application under section 7, 8D or 13 of this Act” for “an application under section 7 or 13 of this Act”;

(i) in subsection (16)(h) by substituting “an application under section 8, 8E or 18 of this Act” for “an application under section 8 or 18 of this Act”

 

 

Amendment of Part II of Act of 1994 — new sections 8A to 8E.

22.—Part II of the Act of 1994 is amended by inserting the following after section 8:

“

Confiscation orders relating to offence of financing terrorism.

8A.—(1) Where a person has been sentenced or otherwise dealt with by a court in respect of one or more offences of financing terrorism of which that person has been convicted, the Director of Public Prosecutions may make, or cause to be made, an application to the court to determine whether the convicted person holds funds subject to confiscation.

(2) For the purposes of this Act, funds subject to confiscation are—

(a) funds used or allocated for use in connection with an offence of financing terrorism, or

(b) funds that are the proceeds of such an offence.

(3) An application under subsection (1) of this section may be made at the conclusion of the proceedings at which the person is sentenced or otherwise dealt with or at a later stage in the proceedings.

(4) An application under subsection (1) of this section shall not be made unless it appears to the Director of Public Prosecutions that the person in question holds funds subject to confiscation.

(5) If the court determines that the person in question holds funds subject to confiscation, the court shall—

(a) determine in accordance with section 8C of this Act the amount to be recovered in that person’s case by virtue of this section, and

(b) make a confiscation order under this section requiring the person to pay that amount.

(6) The standard of proof applicable in civil proceedings is the standard required to determine a question arising under this Act as to—

(a) whether a person holds funds subject to confiscation, and

(b) the amount to be recovered in that person’s case by virtue of this section.

Assessing the value of funds subject to confiscation.

8B.—(1) For the purposes of this Act, the value of the funds that are subject to confiscation is the aggregate of the values of those funds held by the defendant.

(2) For the purpose of assessing the value of funds subject to confiscation, the court shall, subject to subsection (3) of this section, make the following assumptions:

(a) that any funds appearing to the court—

(i) to have been held by the defendant at any time since the conviction, or

(ii) to have been transferred to the defendant at any time since the beginning of the period of six years ending when the proceedings were instituted against the defendant,

were received or collected by the defendant, at the earliest time at which the defendant appears to the court to have held them, for use (whether or not used) in connection with the offence of financing terrorism or as the proceeds of such offence;

(b) that any expenditure of the defendant since the beginning of that period was met out of funds subject to confiscation;

(c) that the funds subject to confiscation are held by the defendant free of any other interests in them.

(3) The court shall not make an assumption set out in subsection (2) of this section if—

(a) that assumption is shown to be incorrect in the case of the defendant, or

(b) the court is satisfied that there would be a serious risk of injustice in that case were the assumption made.

(4) Where the court does not apply one or more of the assumptions set out in subsection (2) of this section, it shall state its reasons.

(5) For the purpose of assessing the value of funds subject to confiscation in a case where a confiscation order has previously been made against the defendant, the court shall not take into account any of that defendant’s funds subject to confiscation that are shown to the court to have been taken into account in determining the amount to be recovered under the confiscation order.

Amount to be recovered under a confiscation order made under section 8A.

8C.—(1) Subject to subsection (2) of this section, where a confiscation order has been made under section 8A of this Act, the amount to be recovered under the order shall be equal to the amount assessed by the court to be the value of the defendant’s funds subject to confiscation.

(2) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of the funds subject to confiscation, the amount to be recovered in the defendant’s case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised.

Re-assessment of whether defendant holds funds subject to confiscation.

8D.—(1) This section applies where an application has previously been made to the court under section 8A of this Act and the court has determined that the defendant did not hold funds subject to confiscation.

(2) The Director of Public Prosecutions may make, or cause to be made, an application to the court for it to consider evidence—

(a) which was not considered by the court in making the determination referred to in subsection (1) of this section, and

(b) which, had it been considered, the Director of Public Prosecutions believes would have led the court to determine that the defendant held funds subject to confiscation.

(3) If, having considered the evidence, the court is satisfied that, had that evidence been available to it, it would have determined that the defendant held funds subject to confiscation, the court—

(a) shall—

(i) make a fresh determination of whether the defendant holds funds subject to confiscation, and

(ii) make a determination under section 8A(5) of this Act of the amount to be recovered by virtue of that section,

and

(b) may make a confiscation order under section 8A(5) of this Act.

(4) In considering an application under this section, the court may take into account any funds held by the defendant on or after the date of the determination referred to in subsection (1) of this section, but only if the Director of Public Prosecutions shows that the funds relate to an offence of financing terrorism committed on or before that date by the defendant or another person.

(5) In considering any evidence under this section relating to any funds to which subsection (4) applies, the court shall not make the assumptions which would otherwise be required under section 8B of this Act.

(6) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the defendant was convicted.

Revised assessment of funds subject to confiscation.

8E.—(1) This section applies where a court has made a determination (referred to in this section as ‘the current determination’) under section 8A(5) of this Act of the amount to be recovered in a particular case by virtue of that section.

(2) Where the Director of Public Prosecutions is of the opinion that the real value of the defendant’s funds subject to confiscation was greater than their assessed value, the Director of Public Prosecutions may make, or cause to be made, an application to the court for the evidence on which that opinion was formed to be considered by the court.

(3) In subsections (2) and (4) of this section—

‘assessed value’ means the value of the defendant’s funds subject to confiscation as assessed by the court under section 8C(1) of this Act;

‘real value’ means the value of the defendant’s funds subject to confiscation which relate to an offence of financing terrorism committed either in the period by reference to which the current determination was made or in any earlier period.

(4) If, having considered the evidence, the court is satisfied that the real value of the defendant’s funds subject to confiscation is greater than their assessed value (whether because their real value was higher at the time of the current determination than was thought or because the value of the funds subject to confiscation has subsequently increased), the court shall make a fresh determination under section 8A(5) of this Act of the amount to be recovered by virtue of that section.

(5) Any determination under section 8A(5) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time the determination is made.

(6) For any determination under section 8A(5) of this Act by virtue of this section, section 8B(5) of this Act shall not apply in relation to any of the defendant’s funds subject to confiscation that were taken into account in respect of the current determination.

(7) In relation to a determination under section 8A(5) of this Act by virtue of this section—

(a) section 3(2) of this Act shall have effect as if for ‘a confiscation order is made against the defendant’ there were substituted ‘of the determination’,

(b) sections 3(8), 10(5)(a) and 12(4) of this Act shall have effect as if for ‘confiscation order’ there were substituted ‘determination’, and

(c) section 8C(2) of this Act shall have effect as if for ‘confiscation order is made’ there were substituted ‘determination is made’.

(8) The court may take into account any funds held by the defendant on or after the date of the current determination, but only if the Director of Public Prosecutions shows that the funds relate to an offence of financing terrorism committed before that date by the defendant or another person.

(9) In considering any evidence relating to any funds to which subsection (8) applies, the court shall not make the assumptions which would otherwise be required by section 8B of this Act.

(10) If, as a result of making the fresh determination required by subsection (4) of this section, the amount to be recovered exceeds the amount set by the current determination, the court may substitute for the amount to be recovered under the confiscation order which was made by reference to the current determination such greater amount as it thinks just in all the circumstances of the case.

(11) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the defendant was convicted.”.

 

Amendment of section 10 of Act of 1994.

24.—Section 10 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (1) (amended by section 27 of the Criminal Justice Act 1999 ):

“(1) Where a defendant accepts to any extent an allegation in a statement that—

(a) is tendered by or on behalf of the Director of Public Prosecutions to a court that is engaged in a determination under section 4 of this Act as to whether a person has benefited from drug trafficking or as to any amount to be recovered by virtue of that section or to a court that is considering an application under section 7, 8, 8A, 8D, 8E or 9 of this Act, and

(b) concerns any matter relevant—

(i) to the determination of whether the defendant—

(I) in the case of a conviction for a drug trafficking offence, has benefited from drug trafficking,

(II) in the case of a conviction for an offence of financing terrorism, holds funds subject to confiscation, or

(III) in the case of a conviction for an offence other than a drug trafficking offence or an offence of financing terrorism, has benefited as mentioned in section 9(4) of this Act,

or

(ii) to the assessment of the value of the defendant’s proceeds of drug trafficking, the value of the funds subject to confiscation or the value of the defendant’s benefits as mentioned in section 9(4) of this Act, as the case may be,

the court may, for the purposes of that determination or assessment, treat the defendant’s acceptance as conclusive of the matters to which it relates.”;

(b) by substituting the following for subsection (4):

“(4) A defendant who fails in any respect to comply with a requirement under subsection (3) of this section may be treated for the purposes of this section as accepting every allegation in the statement other than—

(a) any allegation in respect of which the defendant has complied with the requirement, and

(b) any allegation that—

(i) in the case of a conviction for one or more drug trafficking offences, the defendant has benefited from drug trafficking or that any payment or reward was received by the defendant in connection with drug trafficking carried on by the defendant or another person,

(ii) in the case of a conviction for one or more offences of financing terrorism, the defendant holds funds subject to confiscation, or

(iii) in the case of a conviction for one or more offences, other than a drug trafficking offence or an offence of financing terrorism, the defendant benefited from the offence or property was obtained from the defendant as a result of or in connection with the commission of an offence.”;

(c) by substituting the following for subsection (8):

“(8) No acceptance by the defendant under this section of an allegation that—

(a) any payment or other reward was received by the defendant in connection with drug trafficking carried on by the defendant or another person,

(b) the defendant holds funds subject to confiscation, or

(c) the defendant has benefited from an offence other than a drug trafficking offence or an offence of financing terrorism,

shall be admissible in evidence in any proceedings for an offence.”.

 

Amendment of section 12 of Act of 1994.

26.—Section 12 of the Act of 1994 is amended as follows:

(a) in subsection (1) by substituting “(but not when considering whether to make such an order under section 4 or 8A of this Act)” for “(but not when considering whether to make an order under section 4 of this Act)”;

(b) in subsection (4) by substituting the following paragraphs for paragraph (b):

“(b) (in the case of a conviction for one or more offences of financing terrorism) the value of the defendant’s funds subject to confiscation, or

(c) (in the case of a conviction for an offence or offences other than a drug trafficking offence or an offence of financing terrorism) the value of the defendant’s benefit from the offence or offences in respect of which the order may be made.”.

 

 

 

Amendment of section 13 of Act of 1994.

27.—Section 13 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (2):

“(2) The High Court may exercise the powers of a court under section 4, 8A or 9 of this Act to make a confiscation order against the defendant in the case of a conviction for a drug trafficking offence, an offence of financing terrorism or an offence other than a drug trafficking offence or an offence of financing terrorism if—

(a) the Director of Public Prosecutions asks the High Court to proceed under this section, and

(b) the High Court is satisfied that the defendant has died or absconded.”;

(b) by substituting the following for subsection (4):

“(4) The High Court may exercise the powers of a court under section 4, 8A or 9 of this Act to make a confiscation order against the defendant if—

(a) the relevant proceedings have been instituted in respect of a drug trafficking offence, an offence of financing terrorism or an offence other than a drug trafficking offence or an offence of financing terrorism,

(b) the Director of Public Prosecutions asks the High Court to proceed under this section, and

(c) the High Court is satisfied that the defendant has absconded.”;

(c) in subsection (6) by substituting the following for paragraph (a):

“(a) sections 5(2), 8B(2), 10(3) and 10(4) of this Act shall not apply,”.

 

 

Amendment of section 17 of Act of 1994.

28.—Section 17 of the Act of 1994 is amended as follows:

(a) in subsection (2) by substituting the following for paragraph (a):

“(a) the value of the defendant’s—

(i) proceeds of drug trafficking,

(ii) funds subject to confiscation, or

(iii) benefit as mentioned in section 9(4) of this Act,

as the case may be, in the period by reference to which the determination in question was made (‘the original value’), or”;

(b) in subsection (2) by substituting the following for subparagraph (i):

“(i) may make a fresh determination of the value of the defendant’s—

(I) proceeds under section 4 of this Act, in the case of a drug trafficking offence,

(II) funds subject to confiscation under section 8A of this Act, in the case of an offence of financing terrorism, and

(III) benefit under section 9 of this Act, in the case of an offence other than a drug trafficking offence or an offence of financing terrorism, and”;

(c) by inserting the following after subsection (3):

“(3A) For any determination under section 8A of this Act by virtue of this section, section 8B(5) shall not apply in relation to any of the defendant’s funds subject to confiscation that were taken into account in determining the original value.”.

 

Amendment of section 18 of Act of 1994.

29.—Section 18 of the Act of 1994 is amended by substituting the following for subsection (1):

“(1) This section shall have effect where the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of the person’s—

(a) proceeds of drug trafficking, in the case of a drug trafficking offence,

(b) funds subject to confiscation, in the case of an offence of financing terrorism, or

(c) benefit obtained from an offence other than a drug trafficking offence or an offence of financing terrorism.”.

 

Amendment of section 23 of Act of 1994.

30.—Section 23 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (1):

“(1) The powers conferred on the High Court by section 24 of this Act shall be exercisable—

(a) where—

(i) proceedings have been instituted in the State against the defendant for a drug trafficking offence, an offence of financing terrorism or an indictable offence (other than a drug trafficking offence or an offence of financing terrorism) or an application has been made in respect of the defendant under section 7, 8, 8D, 8E, 13 or 18 of this Act,

(ii) the proceedings or application have not been concluded, and

(iii) either a confiscation order has been made or it appears to the Court that there are reasonable grounds for thinking that a confiscation order may be made in the proceedings or that, in the case of an application under section 7, 8, 8D, 8E, 13 or 18 of this Act, the Court will be satisfied as mentioned in section 7(3), 8(4), 8D(3), 8E(4), 13(2), 13(4) or 18(2) of this Act,

or

(b) where—

(i) the Court is satisfied that proceedings are to be instituted against a person for a drug trafficking offence, an offence of financing terrorism or an offence in respect of which a confiscation order might be made under section 9 of this Act or that an application of a kind mentioned in paragraph (a)(i) of this subsection is to be made in respect of a person, and

(ii) it appears to the Court that a confiscation order may be made in connection with the offence or that a court will be satisfied as mentioned in paragraph (a)(iii) of this subsection.”;

(b) in subsection (2) by substituting the following for paragraph (b):

“(b) references in this Act to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (1)(b)(i) of this section for a drug trafficking offence, an offence of financing terrorism or an offence in respect of which a confiscation order might be made under section 9 of this Act.”.

 

 

Amendment of section 64 of Act of 1994.

40.—Section 64 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (1):

“(1) A member of the Garda Síochána may apply to a judge of the District Court for a warrant under this section in relation to specified premises for the purposes of an investigation into any of the following matters:

(a) drug trafficking;

(b) the commission of an offence of financing terrorism;

(c) the commission of an offence under section 31 of this Act;

(d) whether a person has benefited from drug trafficking;

(e) whether a person holds funds subject to confiscation;

(f) whether a person has benefited from an offence in respect of which a confiscation order might be made under section 9 of this Act.”;

(b) in subsection (3) by substituting the following for paragraph (a):

“(a) that there are reasonable grounds for suspecting that a specified person—

(i) has carried on drug trafficking,

(ii) has committed an offence of financing terrorism,

(iii) has committed an offence under section 31 of this Act,

(iv) has benefited from drug trafficking,

(v) holds funds subject to confiscation, or

(vi) has benefited from an offence in respect of which a confiscation order might be made under section 9 of this Act, and”;

(c) in subsection (4) by substituting the following for paragraphs (a) and (b):

“(a) that there are reasonable grounds for suspecting that a specified person—

(i) has carried on drug trafficking,

(ii) has committed an offence of financing terrorism,

(iii) has committed an offence under section 31 of this Act,

(iv) has benefited from drug trafficking,

(v) holds funds subject to confiscation, or

(vi) has benefited from an offence in respect of which a confiscation order might be made under section 9 of this Act, and

(b) that there are reasonable grounds for suspecting that there is on the premises material that—

(i) relates to the specified person or to—

(I) drug trafficking,

(II) an offence of financing terrorism,

(III) an offence under section 31 of this Act, or

(IV) an offence in respect of which a confiscation order might be made under section 9 of this Act,

and

(ii) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, and

(iii) cannot be particularised at the time of the application, and”.

Criminal Justice (Mutual Assistance) Act 2008

 

PART 4

Freezing, Confiscation and Forfeiture of Property

Chapter 1

Interpretation

Interpretation(Part 4).

31.— (1) In this Part:

“appeal” includes any proceedings for the discharge or setting aside of a judgment and any application for a new trial or stay of execution;

“certificate” means the certificate—

(a) provided for in Article 9 of the Framework Decision, and

(b) the standard form of which is set out in the Annex to the Decision;

“confiscation co-operation order” has the meaning given to it by section 51 ;

“confiscation order” means a confiscation order within the meaning of the Act of 1994;

“defendant” means the person to whose property an external freezing order or external confiscation order relates;

“external confiscation order” means an order made by a court in a designated state for the purpose of—

(a) recovering property in the State which was received or obtained as a result of or in connection with conduct which would, if it occurred in the State, constitute an indictable offence,

(b) recovering the value of such property, or

(c) depriving a person of a pecuniary advantage so received or obtained;

“external forfeiture order” means an order for the forfeiture of property in the State which is made by a court in a designated state in or in connection with proceedings resulting from conduct which would, if it occurred in the State, constitute an indictable offence;

“external freezing order” means any measure—

(a) taken provisionally by a competent judicial authority of a designated state in criminal proceedings to prevent the destruction, transformation, moving, transfer, disposal or use of specified property in the State that could be subject to confiscation or be evidence in those proceedings, and

(b) made for the purpose of—

(i) subsequent confiscation of the property, or

(ii) protection of evidence;

“forfeiture co-operation order” has the meaning given to it by section 60 ;

“freezing co-operation order” has the meaning given to it by section 35 ;

“freezing order” means—

(a) an order under section 24 (as amended by section 105 (a) of this Act) of the Act of 1994,

(b) an order under section 14 or 15 of the Criminal Justice (Terrorist Offences) Act 2005 , or

(c) an order under section 32 ,

which relates to property in a designated state or in so far as it does so;

“issuing judicial authority” means a judicial authority in a designated state, as defined in the law of that state, which makes, validates or in any way confirms an external freezing order;

“issuing state” means the designated state in which an issuing judicial authority exercises jurisdiction;

“property” includes property of any description, corporeal or incorporeal, movable or immovable and wherever situated, which the competent judicial authority in the designated state considers—

(a) to be the proceeds of an offence,

(b) to be equivalent to either the full value or a part of the value of such proceeds, or

(c) to be the instrumentalities or objects of an offence,

and includes documents evidencing title to or an interest in the property;

“realisable property” means—

(a) in relation to a freezing co-operation order or confiscation co-operation order made in respect of specified property, the property specified in the order, and

(b) in any other case—

(i) any property held by the defendant, and

(ii) any property held by a person to whom the defendant has directly or indirectly made a gift,

but does not include property which is the subject of an order made by a court in other proceedings in the State unless or until that order is discharged.

(2) For the purposes of this Part, dealing with property held by any person includes (without prejudice to the generality of the expression)—

(a) where a debt is owed to that person, making a payment to any person in settlement or reduction of the debt, and

(b) removing the property from the State.

(3) References in this Part to a gift are to a gift which, if the external confiscation order were a confiscation order, would be a gift caught by the Act of 1994, and the provisions of that Act concerning a gift so caught apply and have effect in relation to a gift referred to in this Part.

Amendment of Criminal Justice Act 1994.

105.— The Act of 1994 is amended—

(a) in sections 3(1), 24 and 25, 28 to 30 and 65, by the substitution of “freezing order” for “restraint order”,

(b) in section 30, by the substitution of “freezing” for “restraint”,

(c) by the insertion of the following subsection after section 3(16):

“(16A) References in this Act (other than section 9) to an offence in respect of which a confiscation order might be made under section 9 of this Act shall be construed as references to an indictable offence (other than a drug trafficking offence), irrespective of whether a person has been convicted of it on indictment.”,

(d) by the substitution of the following Table for the Table to section 19:

“

Amount outstanding under confiscation order

Period of imprisonment

Not exceeding €650

Exceeding €650 but not exceeding €1,300

Exceeding €1,300 but not exceeding €3,250

Exceeding €3,250 but not exceeding €6,500

Exceeding €6,500 but not exceeding €13,000

Exceeding €13,000 but not exceeding €26,000

Exceeding €26,000 but not exceeding €65,000

Exceeding €65,000 but not exceeding €130,000

Exceeding €130,000 but not exceeding €325,000

Exceeding €325,000 but not exceeding €1,300,000

Exceeding €1,300,000

45 days

3 months

4 months

6 months

9 months

12 months

18 months

2 years

3 years

5 years

10 years

”,

(e) by the addition to Part IV of the following section:

“

Revenue offence.

32A.— For the avoidance of doubt it is hereby declared that, in relation to an offence under the law of a country or territory other than the State, references in this Part to an offence shall be construed as including references to an offence in connection with taxes, duties, customs or exchange regulation.”,

and

(f) in section 60, by the substitution of “restraint (including a freezing order)” for “restraint”,

(g) by the substitution of the following section for section 63:

“

Order to make material available.

63.— (1) For the purposes of an investigation into whether a person has engaged in criminal conduct or criminal proceedings in relation thereto, a member of the Garda Síochána may apply for an order under subsection (3) of this section in relation to any particular material or material of a particular description to a judge of the District Court for the district where the material is situated.

(2) On such an application the judge may make an order under subsection (3) of this section, if satisfied—

(a) that there are reasonable grounds for suspecting that the person has engaged in criminal conduct,

(b) that the material concerned is likely to be of substantial value (whether by itself or together with other material) for the purposes of such investigation or proceedings, and

(c) that there are reasonable grounds for believing that material should be produced or that access to it should be given, having regard to the benefit likely to accrue to the investigation or proceedings and any other relevant circumstances.

(3) An order under this subsection—

(a) shall require any person who appears to the judge to be in possession of the material—

(i) to produce it to a named member of the Garda Síochána so that he or she may take it away, or

(ii) to give the member access to it within 7 days, unless it appears to the judge that another period would be appropriate in the particular circumstances of the case,

(b) may, if the order relates to material at any place and on application by the member concerned, require any person who appears to the judge to be entitled to grant entry to the place to allow the member to enter it to obtain access to the material,

(c) shall authorise the member, if the person so required to grant entry to the place does not do so—

(i) to enter the place, accompanied by such other members or persons or both as the member thinks necessary, on production if so requested of the order and, if necessary, by the use of reasonable force,

(ii) to search the place and any persons present there,

(iii) to take away the material, and

(iv) to take such other steps as appear to the member to be necessary for preserving the material and preventing interference with it.

(4) Where the material consists of information contained in a computer, an order under subsection (3) of this section shall have effect as an order to produce the material, or to give access to it, in a form which is legible and comprehensible or can be made so and in which it can be taken away.

(5) Such an order—

(a) in so far as it may empower a member to take away a document or to be given access to it, shall authorise him or her to make a copy of it and to take the copy away,

(b) shall not confer any right to production of, or access to, any material subject to legal privilege, and

(c) subject to paragraph (b) of this subsection and subsection (10) of this section, shall have effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.

(6) Any material taken away by a member under this section may be retained by him or her for use as evidence in any proceedings.

(7) A judge of the District Court may at a sitting of the Court vary or discharge an order under this section on the application of a member or any person to whom the order relates.

(8) A member searching a place under the authority of an order under this section may—

(a) require any person present at the place where the search is being carried out to give his or her name and address to the member, and

(b) arrest without warrant any person who—

(i) obstructs or attempts to obstruct the member in the carrying out of his or her duties,

(ii) fails to comply with a requirement under paragraph (a) of this subsection, or

(iii) gives a name or address which the member has reasonable cause to believe is false or misleading.

(9) A person who—

(a) obstructs or attempts to obstruct a member acting under the authority of an order under this section,

(b) fails to comply with a requirement under subsection (3)(a) of this section, or

(c) gives a false or misleading name or address to a member,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

(10) Where—

(a) material has been supplied to a Government department or other authority by or on behalf of the government of another state, and

(b) an undertaking was given that the material would be used only for a particular purpose or purposes,

an order under subsection (3) of this section shall not have the effect of requiring or permitting the production of, or the giving of access to, the material for any other purpose without the consent of that government.

(11) In this section—

“criminal conduct” means—

(a) drug trafficking,

(b) the commission of an indictable offence or more than one such offence,

(c) holding funds subject to confiscation,

(d) benefiting from—

(i) drug trafficking,

(ii) an indictable offence or more than one such offence,

(iii) assets or proceeds deriving from criminal conduct or the receipt or control of such assets or proceeds, including conduct which occurs outside the State and which would constitute an indictable offence or more than one such offence—

(I) if it occurred in the State, and

(II) if it constituted an offence or more than one such offence under the law of the state or territory concerned.”.

 

Criminal Justice (Mutual Assistance) (Amendment) Act 2015

Amendment of section 65 of Criminal Justice Act 1994

34. Section 65 of the Criminal Justice Act 1994 is amended by the insertion of the following subsection after subsection (4):

“(4A) The court may order compensation to be paid under this section to a person with an interest in property affected by an order made under section 35, 51, or 60 or executed under section 51A or 60D of the Criminal Justice (Mutual Assistance) Act 2008 —

(a) notwithstanding that he or she is not the person who was the subject of the relevant investigation, and

(b) only if the court is satisfied—

(i) that there has been some serious default on the part of a person concerned in the carrying out of that order on behalf of the State, and

(ii) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of that order.”.

 

 

 

 

 

 

Criminal Justice (Corruption Offences) Act 2018

PART 6

Miscellaneous

Amendment of Criminal Justice Act 1994

23. The Criminal Justice Act 1994 is amended—

(a) in the definition of “realisable property” in section 3(1), by the substitution of the following for all the words from “but does not include property” to the end of that definition:

“but does not include property which is the subject of a forfeiture order under—

(i) section 30 of the Misuse of Drugs Act 1977 ,

(ii) section 17 of the Criminal Justice (Corruption Offences) Act 2018, or

(iii) section 61 of this Act;”,

(b) in paragraph (c) of section 12(3), by the insertion of “, section 17 of the Criminal Justice (Corruption Offences) Act 2018” after “ section 30 of the Misuse of Drugs Act 1977 ”, and

(c) in Schedule 1A—

(i) in Part 1—

(I) by the deletion of paragraph 1, and

(II) in paragraph 6, by the substitution of “paragraphs 2 to 5” for “paragraphs 1 to 5”,

and

(ii) in Part 2—

(I) by the insertion of the following paragraph after paragraph 17:

“17A.An offence under section 5 of the Criminal Justice (Corruption Offences) Act 2018.”,

and

(II) in paragraph 19, by the substitution of “16, 17 and 17A” for “16 and 17”.

 

 

 

 

Criminal Justice (Money Laundering and Terrorist Financing) Act 2010

Consequential amendment of Criminal Justice Act 1994.

117.— (1) In this section, “Act of 1994” means the Criminal Justice Act 1994 .

(2) Section 3(1) of the Act of 1994 is amended in the definition of “ drug trafficking ” by substituting the following for paragraph (d):

“(d) engaging in any conduct (whether or not in the State) in relation to property obtained, whether directly or indirectly, from anything done in relation to a controlled drug, being conduct that—

(i) is an offence under Part 2 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (“ Part 2 of the Act of 2010”) or would have been an offence under that Part if the Part had been in operation at the time when the conduct was engaged in, or

(ii) in the case of conduct in a place outside of the State, other than conduct referred to in subparagraph (i)—

(I) would be an offence under Part 2 of the Act of 2010 if done in corresponding circumstances in the State, or

(II) would have been an offence under that Part if done in corresponding circumstances in the State and if the Part had been in operation at the time when the conduct was engaged in, or”.

(3) Section 3(1) of the Act of 1994 is amended in the definition of “drug trafficking offence” by substituting the following for paragraph (e):

“(e) an offence under Part 2 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, or under section 31 of this Act (as in force before the commencement of that Part), in relation to the proceeds of drug trafficking,”.

 

 

 

 

 

Criminal Justice (Illicit Traffic by Sea) Act 2003

Amendment of Criminal Justice Act 1994.

28.—The Act of 1994 is amended in the following respects:

(a) in section 3(1)—

(i) by the insertion of the following after the definition of “Minister”:

“ ‘outer limit of the territorial seas’ has the meaning given to that expression by the Maritime Jurisdiction Acts 1959 to 1988;”, and

(ii) by the substitution of the following for the definition of “ship”:

“‘ship’ includes a hovercraft or submersible craft, any vessel used in navigation and any other floating craft of any description;”,

(b) by the substitution of the following section for section 33:

“Drug trafficking offences on ships.

33.—(1) A person is guilty of a drug trafficking offence if the person does, on an Irish ship, a ship registered in a Convention state or a ship not registered in any country or territory, any act which, if done in the State, would constitute such an offence.

(2) This section is without prejudice to section 34 of this Act.”,

(c) in section 35—

(i) by the substitution, in subsection (2) of that section, of “outer limit” for “landward limits”, and

(ii) by the insertion of the following subsections after subsection 6:

“(7) Where an enforcement officer is acting under the powers conferred by subsection (1) of this section with the authority of the Minister for Foreign Affairs given under subsection (2) of this section, any person who does or fails to do any act in relation to the officer, which if done or not done in the State in relation to another person would constitute an offence, shall be guilty of that offence.

(8) Requests under this section may be transmitted by facsimile transmission or other electronic means.”,

(d) in section 36, by the substitution, in subsection (3) of that section, of “outer limit” for “landward limits”,

(e) in paragraph 4 of the First Schedule to the Act, by the substitution for “an offence mentioned in section 33 or 34 of this Act” of “a drug trafficking offence”.

Privacy Statement Accessibility European Legislation Identifier (PDF) Open Data License Cookie List

 

Immunity of foreign officials.

12.—A person acting for or on behalf of a Convention state which is a party to the Agreement shall not be liable in any criminal proceedings in the State for anything done in the purported exercise of powers in relation to an Irish vessel

(a) on the authority of the Minister for Foreign Affairs under section 35(4) of the Act of 1994, or

(b) under an agreement referred to in section 35(5) of that Act.

 

 

Criminal Justice (Theft and Fraud Offences) Act, 2001

Amendment of Criminal Justice Act, 1994.

23.—The Criminal Justice Act, 1994 , is hereby amended by the insertion of the following section after section 57:

“

Designation of certain states or territorial units.

57A.—(1) The Minister may by order, after consultation with the Minister for Finance, designate any state, or territorial unit within a state, that in his or her opinion has not in place adequate procedures for the detection of money laundering.

(2) Any person or body to whom or which section 32 of this Act applies (including any director, employee or officer thereof) shall report to the Garda Síochána any transaction connected with a state or territorial unit that stands designated under subsection (1).

(3) A person charged by law with the supervision of a person or body to whom or which section 32 of this Act applies shall report to the Garda Síochána if the person suspects that a transaction referred to in subsection (2) has taken place and that that subsection has not been complied with by the person or body with whose supervision the first-mentioned person is so charged.

(4) A report may be made to the Garda Síochána under this section in accordance with an internal reporting procedure established by an employer for the purpose of facilitating the operation of this section.

(5) In the case of a person who was in employment at the relevant time, it shall be a defence to a charge of committing an offence under this section that the person charged made a report of the type referred to in subsection (2) or (3) of this section, as the case may be, to another person in accordance with an internal reporting procedure established for the purpose specified in subsection (4) of this section.

(6) A person who fails to comply with subsection (2) or (3) of this section is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

(7) In determining whether a person has complied with any of the requirements of this section, a court may take account of any relevant supervisory or regulatory guidance which applies to that person or any other relevant guidance issued by a body that regulates, or is representative of, any trade, profession, business or employment carried on by that person.

(8) Where a person or body discloses in good faith information in the course of making a report under subsection (2) or (3) of this section, the disclosure shall not be treated as a breach of any restriction on the disclosure of information imposed by statute or otherwise or involve the person or body making the disclosure (or any director, employee or officer of the body) in liability of any kind.

(9) The Minister may by order, after consultation with the Minister for Finance, amend or revoke an order under this section, including an order under this subsection.”.

Amendment of section 58 of Act of 1994.

37.—Section 58 of the Act of 1994 is amended as follows:

(a) in subsection (1) by substituting “an investigation into drug trafficking, into whether a person holds funds subject to confiscation or into whether a person has benefited from an offence in respect of which a confiscation order might be made” for “an investigation into drug trafficking or into whether a person has benefited from an offence in respect of which a confiscation order might be made”, and

(b) in subsection (2) by substituting “makes any disclosure which is likely to prejudice an investigation arising from a report into whether an offence of financing terrorism or an offence under section 31 or 32 of this Act has been committed shall be guilty of an offence” for “makes any disclosure which is likely to prejudice an investigation arising from a report into whether an offence under section 31 or 32 of this Act has been committed shall be guilty of an offence”.

 

S.I. No. 281/2007 –

European Communities (Controls of Cash Entering Or Leaving the Community) Regulations 2007

 

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 15th June, 2007.

I, BRIAN COWEN, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purposes of giving full effect to Regulation (EC) No. 1889/2005 of the European Parliament and of the Council of 26 October 2005 1 , hereby make the following regulations—

1. (1) These Regulations may be cited as the European Communities (Controls of Cash Entering or Leaving the Community) Regulations 2007.

(2) These Regulations apply from 15 June 2007.

2. (1) In these Regulations “EC Regulation” means Regulation (EC) No. 1889/2005 of the European Parliament and of the Council of 26 October 20051.

(2) A word or expression that is used in these Regulations and which is also used in the EC Regulation has, unless the contrary intention appears, the same meaning in these Regulations that it has in the EC Regulation.

3. As provided for by Article 2 of the EC Regulation, the Revenue Commissioners, as the customs authority in the State, are the competent authority to apply the EC Regulation.

4. As provided for by Article 3 of the EC Regulation, any natural person entering or leaving the Community and carrying cash of a value of €10,000 or more is obliged to make a declaration to the competent authority and, for that purpose, the declaration shall be made in writing and be made to the Revenue Commissioners in the case of such person so entering or leaving the Community through the State.

5. (1) An officer of the Revenue Commissioners may seize and, in accordance with this Regulation, detain any cash worth not less than €10,000 that is being imported into or exported from the Community through the State in contravention of the EU Regulation and these Regulations.

(2) For the purposes of checking if a person has complied with the obligation to declare, on entering or leaving the Community, that he or she has possession of cash worth not less than €10,000, an officer of the Revenue Commissioners may do one or more of the following—

(a) question the person on so entering or leaving through the State for the purpose of establishing whether or not he or she has in his or her possession an amount of cash worth not less than €10,000;

(b) search the person’s baggage and means of transport.

(3) Where as a consequence of any response or lack of response to any question asked under paragraph (2)(a) or a search carried out under paragraph (2)(b), or both, an officer of the Revenue Commissioners has reasonable grounds for suspecting that the person—

(a) is importing or exporting from the Community in contravention of the EU Regulation and these Regulations, or

(b) intends or is about to so import or export in contravention of the EU Regulation and these Regulations,

an amount of cash worth not less than €10,000, then the officer may search the person or cause the person to be searched by another officer of the Revenue Commissioners.

(4) Cash seized by virtue of this Regulation shall not be detained for more than 48 hours under these Regulations.

(5) If at a time when any cash is being detained by virtue of these Regulations a judge of the District Court if satisfied, on an application made by an officer of the Revenue Commissioners that that cash could, on the basis of information available at the time of the detention or subsequently available, have been detained under section 38 of the Criminal Justice Act 1994 , then the judge may make the order under subsection (2) of the said section 38 as if the cash had been seized and detained under that section, and the Criminal Justice Act 1994 shall have effect and apply accordingly to the cash.

6. (1) A person who fails to make a declaration as required by Article 3 of the EC Regulation commits an offence.

(2) A person who makes an incorrect or incomplete declaration for the purpose of the EC Regulation commits an offence.

(3) A person who commits an offence under these Regulations is liable, on summary conviction, to a fine not exceeding €5,000.

7. The Probation of Offenders Act 1907 does not apply to an offence under these Regulations.

8. These Regulations shall be construed together with the Customs Acts.

/images/ls

GIVEN under my Official Seal,

11 June 2007

BRIAN COWEN,

Minister for Finance.

EXPLANATORY NOTE

(This is not part of the instrument and does not purport to be a legal interpretation.)

The purpose of these Regulations are to implement Regulation (EC) No. 1889/2005 of the European Parliament and of the Council of 26 October 2005 and the measures to be taken when a person entering or leaving the Community and carrying cash of a value of €10,000 or more fails to make a declaration to Customs or makes an incorrect or incomplete declaration.

These Regulations specify that the Revenue Commissioners, as the customs authority in the State, are the competent authority for the control of cash entering or leaving the Community. They also create offences and provide for related penalties and enforcement powers.

1 OJ No. L309 of 25.11.2005, p.9

S.I. No. 540/2017 –

European Union (Freezing and Confiscation of Instrumentalities and Proceeds of Crime) Regulations 2017

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 1st December, 2017.

I, CHARLES FLANAGAN, Minister for Justice and Equality, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive 2014/42/EU of the European Parliament and of the Council of 3 April 20141 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, hereby make the following regulations:

Citation

1. These Regulations may be cited as the European Union (Freezing and Confiscation of Instrumentalities and Proceeds of Crime) Regulations 2017.

Definition

2. In these Regulations, “Principal Act” means the Criminal Justice Act 1994 (No.15 of 1994).

Amendment of section 3 of Principal Act

3. Section 3 of the Principal Act is amended—

(a) in subsection (1)—

(i) in the definition of “confiscation order”, by the insertion of “, 8F(7)” after “8A(5)”, and

(ii) by the insertion of the following definitions:

“ ‘Directive’ means Directive 2014/42/EU of the European Parliament and of the Council of 3 April 20141 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union;

‘economic advantage’ includes a valuable benefit;

‘extended confiscation offence’ means an offence referred to in Part 2 of Schedule 1A in so far as it is an offence referred to in Article 5 of the Directive;

‘relevant conduct’-

(a) in relation to a relevant offence which falls within paragraph (a) of section 8F(1), means conduct referred to in subparagraph (ii) of that paragraph, and

(b) in relation to a relevant offence which falls within paragraph (b) of section 8F(1), means conduct referred to in subparagraph (ii) of that paragraph;

‘relevant offence’ means an offence referred to in Part 1 or 2 of Schedule 1A in so far as it is covered by an instrument referred to in Article 3 of the Directive;”,

(b) in subsection (4)—

(i) by the substitution of “or a person’s proceeds of a relevant offence or relevant conduct, or” for “or, as the case may be,”, and

(ii) by the substitution of “other than a drug trafficking offence or a relevant offence” for “other than a drug trafficking offence”,

(c) in subsection (6)—

(i) by the insertion of “or an economic advantage” after “or to a payment or reward”, and

(ii) in paragraph (a), by the insertion of “or economic advantage” after “or reward”,

(d) by the insertion of the following subsection after subsection (9A):

“(9B) For the purposes of the provisions of this Act relating to an extended confiscation offence, a gift (including a gift made before the commencement of the European Union (Freezing and Confiscation of Instrumentalities and Proceeds of Crime) Regulations 2017 ( S.I. No. 540 of 2017 )) is caught by this Act if—

(a) it was made by the defendant at any time since the beginning of a period of 6 years ending when proceedings in respect of that offence were instituted against the defendant, or

(b) it was made by the defendant at any time and was a gift of property—

(i) which was received by the defendant in connection with conduct constituting that offence carried on by the defendant or another person, or

(ii) which in whole or in part directly or indirectly represented in the defendant’s hands property received by him or her in that connection.”,

(e) in subsection (12), by the insertion of “(other than in the case of a relevant offence)” after “For the purposes of this Act”,

(f) by the insertion of the following subsection after subsection (12):

“(12A)(a) For the purposes of this Act in so far as it relates to a relevant offence, the circumstances in which the defendant is to be treated as making a gift include those where he or she transfers property to another person directly or indirectly for a consideration and the person to whom the property is transferred knows that the purpose of the transfer was to avoid the confiscation of the property.

(b) The person shall be taken to know that the transfer was carried out for that purpose where the transfer occurred in circumstances (including that the transfer was carried out for an amount significantly lower than the market value) where the person ought to know that the transfer was carried out for that purpose, unless the contrary is shown.”,

(g) in subsection (15), by the insertion of “or economic advantage” after “pecuniary advantage” in each place where it occurs, and

(h) in subsection (16)—

(i) in paragraph (g), by the insertion of “, 8I” after “8D”, and

(ii) in paragraph (h), by the insertion in of “, 8J” after “8E”.

Amendment of section 4 of Principal Act

4. Section 4 of the Principal Act is amended, in subsection (1), by the insertion of “(other than a relevant offence)” after “one or more drug trafficking offences”.

Amendment of Principal Act

5. The Principal Act is amended by the insertion of the following sections after section 8E:

“Confiscation orders relating to relevant offences

8F.(1) Where a person has been sentenced or otherwise dealt with by a court in respect of a relevant offence of which that person has been convicted on indictment-

(a) if such offence is a drug trafficking offence, the court shall, subject to subsections (2) and (3), determine whether the convicted person has benefited from—

(i) that offence, and

(ii) conduct constituting that offence, or

(b) if such offence is not a drug trafficking offence, the Director of Public Prosecutions may, subject to subsection (5), make, or cause to be made, an application to the court to determine whether the convicted person has benefited—

(i) from that offence, or

(ii) where that offence is an extended confiscation offence, from conduct constituting that offence.

(2) A court may decide not to make a determination under section (1)(a) where, following such preliminary inquiries, if any, as it may make, it is satisfied that having regard to—

(a) the present means of the convicted person, and

(b) all of the other circumstances of the case, including the matters which are to be taken into account under section 12(3),

the amount, if any, which might be recovered under any confiscation order which might be made would not be sufficient to justify proceeding with consideration of the making of such an order.

(3) The duty of a court to make a determination under subsection (1)(a) shall not apply if the convicted person has died or absconded, and accordingly the provisions of section 13 shall apply in such a case.

(4) An application under subsection (1)(b) may be made at the conclusion of the proceedings at which the person is sentenced or otherwise dealt with or at a later stage.

(5) An application under subsection (1)(b) shall not be made unless it appears to the Director of Public Prosecutions that the person in question has benefited from the relevant offence or relevant conduct.

(6) For the purposes of the provisions of this Act relating to an order under this section, a person benefits from a relevant offence or relevant conduct if he or she derives, directly or indirectly, any economic advantage from the offence or conduct, including by means of any subsequent reinvestment or transformation of direct proceeds.

(7) If the court determines that the person in question has benefited from the relevant offence or relevant conduct, the court shall—

(a) determine in accordance with section 8H the amount to be recovered in that person’s case by virtue of this section, and

(b) make a confiscation order under this section requiring the person to pay that amount.

(8) The standard of proof required to determine any question arising under this Act as to—

(a) whether a person has benefited as mentioned in subsection (6), or

(b) the amount to be recovered in his or her case by virtue of this section,

shall be that applicable in civil proceedings.

Assessing proceeds of relevant offence, etc.

8G. (1) For the purposes of this Act, the aggregate of the value of any economic advantage derived, directly or indirectly, from a relevant offence, or from relevant conduct carried on by the defendant or another person, including by means of any subsequent reinvestment or transformation of direct proceeds, is the value of the defendant’s proceeds of that offence or conduct.

(2)(a) Subject to paragraph (b), for the purposes of determining whether the defendant has benefited from relevant conduct, and, if he or she has, of assessing the value of his or her proceeds of that conduct, the court shall make the assumptions set out in subsection (4).

(b) The court shall not make an assumption set out in subsection (4) if—

(i) that assumption is shown to be incorrect in the case of the defendant, or

(ii) the court is satisfied that there would be a serious risk of injustice in that case if the assumption were to be made.

(3) Where the court does not apply one or more of the assumptions set out in subsection (4), it shall state its reasons.

(4) The assumptions referred to in subsection (2) are as follows:

(a) that any property appearing to the court—

(i) to have been held by the defendant at any time since the conviction, or

(ii) to have been transferred to the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against the defendant,

was received by the defendant, at the earliest time at which the defendant appears to the court to have held it, as an economic advantage derived from relevant conduct;

(b) that any expenditure of the defendant since the beginning of that period was met out of an economic advantage derived from that conduct;

(c) that, for the purpose of valuing any property derived from that conduct, the defendant received the property free of any other interests in it.

(5) For the purpose of assessing the value of proceeds of relevant conduct in a case where a confiscation order has previously been made against the defendant, the court shall not take into account any of that defendant’s proceeds of relevant conduct that are shown to the court to have been taken into account in determining the amount to be recovered under that order.

Amount to be recovered under confiscation order made under section 8F

8H. (1) Subject to subsection (2), where a confiscation order has been made under section 8F, the amount to be recovered under the order shall be equal to the amount assessed by the court to be the value of the defendant’s proceeds of the relevant offence or relevant conduct.

(2) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of the defendant’s proceeds of the relevant offence or relevant conduct, the amount to be recovered in the defendant’s case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised.

Reassessment of whether defendant has benefited from relevant offence or relevant conduct

8I. (1) This section applies where—

(a) the court has made a decision under section 8F(2) not to make a determination as to whether the defendant has benefited from the relevant offence or relevant conduct, or

(b) either—

(i) the court has determined under section 8F(1)(a) that the defendant has not benefited from the relevant offence or relevant conduct, or

(ii) an application has previously been made to the court under section 8F(1)(b) and the court has determined that the defendant has not benefited from the relevant offence or relevant conduct.

(2) The Director of Public Prosecutions may make, or cause to be made, an application to the court for it to consider evidence—

(a) which was not considered by the court in, as appropriate, making the decision referred to in subsection (1)(a) or the determination referred to in subsection (1)(b)(i) or (ii), and

(b) which, had it been considered, the Director of Public Prosecutions believes would have led the court to determine that the defendant had benefited from the relevant offence or relevant conduct.

(3) If, having considered the evidence, the court is satisfied that, had that evidence been available to it, it would have determined that the defendant had benefited from the relevant offence or relevant conduct, the court—

(a) shall—

(i) make, as appropriate, a determination or fresh determination of whether the defendant has so benefited, and

(ii) make a determination under section 8F(7) of the amount to be recovered by virtue of that section, and

(b) may make a confiscation order under section 8F(7).

(4) In considering an application under this section, the court may take into account any economic advantage derived by the defendant on or after, as appropriate, the date of the decision referred to in subsection (1)(a) or the date of the determination referred to in subsection (1)(b)(i) or (ii), but only if the Director of Public Prosecutions shows that the economic advantage relates to—

(a) the relevant offence, or

(b) where that offence is an extended confiscation offence, the relevant conduct which took place on or before that date by the defendant or another person.

(5) In considering any evidence under this section relating to any economic advantage to which subsection (4) applies, the court shall not make the assumptions which would otherwise be required under section 8G.

(6) No application shall be entertained by the court under this section if it is made after the end of the period of 6 years beginning with the date on which the defendant was convicted.

Revised assessment of proceeds from relevant offence or relevant conduct

8J.(1) This section applies where a court has made a determination (referred to in this section as ‘the current determination’) under section 8F(7) of the amount to be recovered in a particular case by virtue of that section.

(2) Where the Director of Public Prosecutions is of the opinion that the real value of the defendant’s proceeds of the relevant offence or relevant conduct was greater than their assessed value, the Director of Public Prosecutions may make, or cause to be made, an application to the court for the evidence on which that opinion was formed to be considered by the court.

(3) In subsections (2) and (4)—

‘assessed value’ means the value of the defendant’s proceeds as assessed by the court under section 8H(1);

‘real value’ means the value of the defendant’s proceeds which relate to—

(a) the relevant offence, or

(b) the relevant conduct which took place either in the period by reference to which the current determination was made or in any earlier period.

(4) If, having considered the evidence, the court is satisfied that the real value of the defendant’s proceeds is greater than their assessed value (whether because their real value was higher at the time of the current determination than was thought or because the value of the proceeds has subsequently increased), the court shall make a fresh determination under section 8F(7) of the amount to be recovered by virtue of that section.

(5) Any determination under section 8F(7) by virtue of this section shall be by reference to the amount that might be realised at the time the determination is made.

(6) For any determination under section 8F(7) by virtue of this section, section 8G(5) shall not apply in relation to any of the defendant’s proceeds that were taken into account in respect of the current determination.

(7) In relation to a determination under section 8F(7) by virtue of this section—

(a) section 3(2) shall have effect as if for ‘a confiscation order is made against the defendant’ there were substituted ‘of the determination’,

(b) sections 3(8), 10(5)(a) and 12(4) shall have effect as if for ‘confiscation order’ there were substituted ‘determination’, and

(c) section 8H(2) shall have effect as if for ‘confiscation order is made’ there were substituted ‘determination is made’.

(8) The court may take into account any economic advantage derived by the defendant from the relevant offence or relevant conduct on or after the date of the current determination, but only if the Director of Public Prosecutions shows that the economic advantage relates to—

(a) the relevant offence, or

(b) where that offence is an extended confiscation offence, the relevant conduct which took place on or before that date by the defendant or another person.

(9) In considering any evidence relating to any economic advantage to which subsection (8) applies, the court shall not make the assumptions which would otherwise be required by section 8G.

(10) If, as a result of making the fresh determination required by subsection (4), the amount to be recovered exceeds the amount set by the current determination, the court may substitute for the amount to be recovered under the confiscation order which was made by reference to the current determination such greater amount as it thinks just in all the circumstances of the case.

(11) No application shall be entertained by the court under this section if it is made after the end of the period of 6 years beginning with the date on which the defendant was convicted.”.

Amendment of section 9 of Principal Act

6. Section 9 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “other than a drug trafficking offence, an offence of financing terrorism or a relevant offence” for “other than a drug trafficking offence or an offence of financing terrorism”,

(b) in subsection (2), by the substitution of “(not being a drug trafficking offence, an offence of financing terrorism or a relevant offence)” for “(not being a drug trafficking offence or an offence of financing terrorism)”, and

(c) in subsection (4), by the substitution of “other than a drug trafficking offence, an offence of financing terrorism or a relevant offence” for “other than a drug trafficking offence or an offence of financing terrorism”.

Amendment of section 10 of Principal Act

7. Section 10 of the Principal Act is amended—

(a) in subsection (1)—

(i) in paragraph (a), by the insertion of “, 8F, 8I, 8J” after “8E”, and

(ii) in paragraph (b)—

(I) in subparagraph (i), by the substitution of the following clauses for clauses (II) and (III):

“(II) in the case of a conviction for an offence of financing terrorism, holds funds subject to confiscation,

(IIA) in the case of a conviction for a relevant offence, has benefited as mentioned in section 8F(1)(a) or (b), or

(III) in the case of a conviction for an offence other than a drug trafficking offence, an offence of financing terrorism or a relevant offence, has benefited as mentioned in section 9(4), or”, and

(II) in subparagraph (ii), by the insertion of “, the value of the defendant’s benefit as mentioned in section 8F(1)(a) or (b) (as assessed in accordance with section 8G)” after “the value of the funds subject to confiscation”,

(b) in subsection (4), in paragraph (b)—

(i) in subparagraph (ii), by the substitution of “confiscation,” for “confiscation, or”,

(ii) by the insertion of the following subparagraph after subparagraph (ii):

“(iia) in the case of a conviction for a relevant offence, the defendant has benefited from the offence or relevant conduct, or has derived any economic advantage from that offence or conduct, or”,

(iii) in subparagraph (iii), by the substitution of “other than a drug trafficking offence, an offence of financing terrorism or a relevant offence” for “other than a drug trafficking offence or an offence of financing terrorism”, and

(c) in subsection (8)—

(i) in paragraph (b), by the deletion of “or”,

(ii) by the insertion of the following paragraph after paragraph (b):

“(bb) the defendant has benefited from a relevant offence or relevant conduct, or”,

and

(iii) in paragraph (c), by the substitution of “other than a drug trafficking offence, an offence of financing terrorism or a relevant offence, or from relevant conduct” for “other than a drug trafficking offence or an offence of financing terrorism”.

Amendment of section 11 of Principal Act

8. Section 11 of the Principal Act is amended—

(a) in subsection (1)(b), by the insertion of “, 8F, 8I, 8J” after “8E”, and

(b) in subsection (8), by the substitution of the following paragraph for paragraph (b):

“(b) on conviction on indictment—

(i) subject to subparagraph (ii), to imprisonment for a term not exceeding 5 years or to a fine or to both, or

(ii) where the application referred to in subsection (1)(b) was made under section 8F, 8I or 8J, to imprisonment for a term not exceeding 3 years or to a fine not exceeding €500,000 or to both.”.

Amendment of section 12 of Principal Act

9. Section 12 of the Principal Act is amended, in subsection (1), by the insertion of “8F or” after “confiscation order under section”.

Amendment of section 13 of Principal Act

10. Section 13 of the Principal Act is amended—

(a) in subsections (2) and (4), by the insertion of “, 8F” after “8A”,

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

“(5A) Subsection (5B) applies where proceedings have been instituted against a person for a relevant offence but have not been concluded.

(5B) The High Court may exercise the powers of a court under section 8F to make a confiscation order against the defendant or the powers of a court under section 61 to make a forfeiture order if—

(a) the Director of Public Prosecutions asks the High Court to proceed under this section, and

(b) the High Court is satisfied that—

(i) the proceedings have been discontinued by reason of the defendant being ill, or in the case of a forfeiture order, the defendant has absconded, and

(ii) the proceedings could have led to a conviction if the proceedings had continued.”, and

(c) in subsection (6)(a), by the insertion of “8G(2),” after “8B(2),”.

Amendment of section 17 of Principal Act

11. Section 17 of the Principal Act is amended—

(a) in subsection (2)—

(i) in paragraph (a)—

(I) in subparagraph (ii), by the substitution of “confiscation,” for “confiscation, or”, and

(II) by the insertion of the following subparagraph after subparagraph (ii):

“(iia) benefit as mentioned in section 8F(1)(a) or (b) (as assessed in accordance with section 8G), or”

(ii) in paragraph (i)—

(I) in subparagraph (II), by the substitution of “terrorism,” for “terrorism, and”,

(II) in subparagraph (III), by the substitution of “other than a drug trafficking offence, an offence of financing terrorism or a relevant offence” for “other than a drug trafficking offence or an offence of financing terrorism”, and

(III) by the insertion of the following subparagraph after subparagraph (III):

“(IV) benefit as mentioned in section 8F(1)(a) or (b) (as assessed in accordance with section 8G), and”,

and

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

“(3B) For any determination under section 8F by virtue of this section, section 8G(5) shall not apply in relation to the any of the defendant’s benefit as mentioned in section 8F(1)(a) or (b) (as determined in accordance with the other provisions of section 8G) that was taken into account in determining the original value.”.

Amendment of section 23 of Principal Act

12. Section 23 of the Principal Act is amended—

(a) in subsection (1)—

(i) in paragraph (a)—

(I) by the substitution of the following subparagraph for subparagraph (i):

“(i) proceedings have been instituted in the State against the defendant for a drug trafficking offence, an offence of financing terrorism, a relevant offence, or an indictable offence (other than a drug trafficking offence, an offence of financing terrorism or a relevant offence), or an application has been made in respect of the defendant under section 7, 8, 8D, 8E, 8I, 8J, 13 or 18,”,

(II) in subparagraph (iii)—

(I) by the insertion of “8I, 8J,” after “8E,”, and

(II) by the insertion of “8I(3), 8J(4),” after “8E(4),”, and

(ii) in paragraph (b)(i), by the substitution of “section 8F or 9” for “section 9”, and

(b) in subsection (2)(b), by the substitution of “section 8F or 9” for “section 9”.

Amendment of section 24 of Principal Act

13. Section 24 of the Principal Act is amended, in subsection (4)(b), by the insertion of “(which shall include the reasons for the making of the order)” after “shall provide for notice”.

Amendment of section 28 of Principal Act

14. Section 28 of the Principal Act is amended, in subsection (3)(a)(ii), by the insertion of “8I, 8J,” after “8E,”.

Amendment of section 61 of Principal Act

15. Section 61 of the Principal Act is amended, in subsection (1), by the insertion of the following paragraph after paragraph (a):

“(aa) in the case of a relevant offence, the court by or before which he or she is convicted is satisfied that any property—

(i) has been used for the purpose of committing, or facilitating the commission of, any offence, or

(ii) was intended by him or her to be used for that purpose, or”.

Amendment of section 64 of Principal Act

16. Section 64 of the Principal Act is amended, in subsections (1)(f), (3)(a)(vi) and (4)(a)(vi) and (b)(i)(IV), by the substitution of “an offence in respect of which a confiscation order might be made under section 8F or 9” for “an offence in respect of which a confiscation order might be made under section 9”.

Amendment of section 65 of Principal Act

17. Section 65 of the Principal Act is amended, in subsection (1), by the substitution of “confiscation order might be made under section 9, a relevant offence” for “compensation order might be made under section 9 of this Act”.

Insertion of Schedule 1A into Principal Act

18. The Principal Act is amended by the insertion of the following Schedule after Schedule 1:

“Schedule 1A

Section 3

Relevant Offences

Part 1

Relevant offences which are not extended confiscation offences

1. An offence under section 1 of the Prevention of Corruption Act 1906 (No. 34 of 1906).

2. An offence under section 5A(4) or 6 of the Child Trafficking and Pornography Act 1998 (No. 22 of 1998).

3. An offence under section 3A of the Criminal Law (Sexual Offences) Act 2006 (No. 15 of 2006) or an attempt to commit such an offence.

4. An offence under section 6 , 7 or 8 of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017).

5. An offence under section 2 or 5 of the Criminal Justice (Offences Against Information Systems) Act 2017 (No. 11 of 2017).

6. An offence consisting of aiding, abetting, counselling, procuring or inciting the commission of an offence referred to in any of paragraphs 1 to 5.

Part 2

Relevant offences which are extended confiscation offences

1. An offence under section 1 of the Prevention of Corruption Act 1906 (No. 34 of 1906).

2. An offence under section 21 or 21A of the Offences Against the State Act 1939 (No. 13 of 1939).

3. An offence under any of the following provisions of the Misuse of Drugs Act 1977 (No. 12 of 1977):

(a) section 15(1);

(b) section 15A;

(c) section 15B;

(d) section 15C;

(e) section 17(2);

(f) section 20(1);

(g) section 21(1);

(h) section 21(2) consisting of a contravention of Regulation 4 of the Misuse of Drugs Regulations 1988 ( S.I. No. 328 of 1988 ).

4. An offence under section 4 of the Criminal Law (Rape) Amendment Act 1990 (No. 32 of 1990).

5. An offence under section 6 of the Criminal Law (Sexual Offences) Act 1993 (No. 20 of 1993).

6. An offence under section 34 (2) of the Criminal Justice Act 1994 (No. 15 of 1994).

7. An offence under section 2 of the Sexual Offences (Jurisdiction) Act 1996 (No. 38 of 1996).

8. An offence under section 3 (1), (3) or (4), 4A, 5 or 5A(1) of the Child Trafficking and Pornography Act 1998 (No. 22 of 1998).

9. An offence under section 6 of the Offences Against the State (Amendment) Act 1998 (No. 39 of 1998).

10. An offence under any of the following provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001):

(a) section 4;

(b) section 9;

(c) section 17(1);

(d) section 18(1);

(e) section 25(1);

(f) section 26(1);

(g) section 29(1);

(h) section 29(3);

(i) section 33(1);

(j) section 34(1);

(k) section 34(2);

(l) section 35(1);

(m) section 36(1);

(n) section 36(2);

(o) section 37(1);

(p) section 38(1).

11. An offence under section 6 of the Criminal Justice (Terrorist Offences) Act 2005 (No. 2 of 2005).

12. An offence under section 2 or 3 of the Criminal Law (Sexual Offences) Act 2006 (No. 15 of 2006).

13. An offence under section 71A or 72 of the Criminal Justice Act 2006 (No. 26 of 2006).

14. An offence under section 2 , 3 , 4 or 7 of the Criminal Law (Human Trafficking) Act 2008 (No. 8 of 2008).

15. An offence under section 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010).

16. An offence under section 3 , 22 or 41 of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017).

17. An offence under any of the following provisions of the Criminal Justice (Offences Against Information Systems) Act 2017 (No. 11 of 2017):

(a) section 3;

(b) section 4;

(c) section 6.

18. An offence consisting of attempting to commit an offence referred to in any of paragraphs 3, 4, 5, 6, 7, 8, 10 (other than an offence referred to in paragraph 10(c), (d), (f), (g), (h), (m) or (n)), 11, 14, 15, 16 and 17(a) or (b).

19. An offence consisting of aiding, abetting, counselling, procuring or inciting the commission of an offence referred to in any of paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 (other than an offence referred to in paragraph 10(a) to (h)), 11, 12, 14, 15, 16 and 17.

20. An offence consisting of conspiracy to commit an offence carrying a maximum penalty of four years’ imprisonment or more.”.

Saver

19. For the purpose of proceedings for a relevant offence (within the meaning of section 3 of the Principal Act) instituted but not concluded before the commencement of these Regulations, section 4, or, as the case may be, section 9, of the Principal Act applies as if these Regulations had never been made.

 

GIVEN under my Official Seal,

28 November 2017.

CHARLES FLANAGAN,

Minister for Justice and Equality.

1 OJ L 127, 29.4.2014, p. 39

European Union (Freezing and Confiscation of Instrumentalities and Proceeds of Crime) Regulations 2019

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 27th September, 2019.

I, CHARLES FLANAGAN, Minister for Justice and Equality, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2014/42/EU of the European Parliament and of the Council of 3 April 20141 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, hereby make the following regulations:

Citation

1. These Regulations may be cited as the European Union (Freezing and Confiscation of Instrumentalities and Proceeds of Crime) Regulations 2019.

Definition

2. In these Regulations, “Principal Act” means the Criminal Justice Act 1994 (No.15 of 1994).

Amendment of section 3 of Principal Act

3. Section 3 of the Principal Act is amended –

(a) in subsection (1) –

(i) in the definition of “extended confiscation offence”, by the deletion of “in so far as it is an offence referred to in Article 5 of the Directive”,

(ii) by the substitution of the following definition for the definition of “relevant conduct”:

“ ‘relevant conduct’ means criminal conduct within the meaning of section 43;”, and

(iii) in the definition of “relevant offence”, by the deletion of “in so far as it is covered by an instrument referred to in Article 3 of the Directive”, and

(b) by the insertion of the following subsection after subsection (17):

“(18) For the purposes of this Act in so far as it relates to a relevant offence, a reference to a court shall be construed as including a reference to the Special Criminal Court.”.

Amendment of section 8F of Principal Act

4. Section 8F of the Principal Act is amended, in subsection (1)(b)(ii), by the substitution of “relevant conduct” for “conduct constituting that offence”.

Amendment of Schedule 1A to Principal Act

5. Schedule 1A to the Principal Act is amended –

(a) in Part 1, by the substitution of the following paragraph for paragraph 4:

“4. An offence under –

(a) section 6 or 7 of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017), or

(b) section 8 of that Act in so far as such offence is covered by an instrument referred to in the Article 3 of the Directive.”,

(b) in Part 2 –

(i) in paragraph 3, by the insertion of “in so far as such offence is an offence referred to in Article 5 of the Directive” after “(No. 12 of 1977)”,

(ii) in paragraph 4, by the insertion of “in so far as such offence is an offence referred to in Article 5 of the Directive” after “(No. 32 of 1990)”,

(iii) in paragraph 5, by the insertion of “in so far as such offence is an offence referred to in Article 5 of the Directive” after “(No. 20 of 1993)”,

(iv) in paragraph 6, by the insertion of “in so far as such offence is an offence referred to in Article 5 of the Directive” after “(No. 15 of 1994)”,

(v) in paragraph 7, by the insertion of “in so far as such offence is an offence referred to in Article 5 of the Directive” after “(No. 38 of 1996)”,

(vi) by the substitution of the following paragraph for paragraph 8:

“8. (a) An offence under section 3(1), (2), (3) or (4) of the Child Trafficking and Pornography Act 1998 (No. 22 of 1998) (in this paragraph referred to as the ‘Act of 1998’) in so far as such offence is an offence referred to in Article 5 of the Directive

(b) An offence under section 4A of the Act of 1998

(c) An offence under section 5 of the Act of 1998 in so far as such offence is an offence referred to in Article 5 of the Directive

(d) An offence under section 5A(1) of the Act of 1998.”,

(vii) in paragraph 10 –

(I) in subparagraph (a), by the insertion of “(but only in so far as such offence is an offence referred to in Article 5 of the Directive)” after “section 4”,

(II) in subparagraph (c), by the insertion of “(but only in so far as such offence is an offence referred to in Article 5 of the Directive)” after “section 17(1)”,

(III) in subparagraph (d), by the insertion of “(but only in so far as such offence is an offence referred to in Article 5 of the Directive)” after “section 18(1)”,

(IV) in subparagraph (f), by the insertion of “(but only in so far such offence is an offence referred to in Article 5 of the Directive)” after “section 26(1)”,

(V) in subparagraph (g), by the insertion of “(but only in so far as such offence is an offence referred to in Article 5 of the Directive)” after “section 29(1)”, and

(VI) in subparagraph (o), by the insertion of “(but only in so far as such offence is an offence referred to in Article 5 of the Directive)” after “section 37(1)”,

(viii) in paragraph 11, by the insertion of “in so far as such offence is an offence referred to in Article 5 of the Directive” after “(No. 2 of 2005)”,

(ix) by the substitution of the following paragraph for paragraph 13:

“13. An offence under –

(a) section 71A of the Criminal Justice Act 2006 (No. 26 of 2006), or

(b) section 72 of that Act in so far as such offence is an offence referred to in Article 5 of the Directive.”,

(x) in paragraph 14, by the insertion of “in so far as such offence is an offence referred to in Article 5 of the Directive” after “(No. 8 of 2008)”,

(xi) in paragraph 15, by the insertion of “in so far as such offence is an offence referred to in Article 5 of the Directive” after “(No. 6 of 2010)”,

(xii) in paragraph 16, by the insertion of “in so far as such offence is an offence referred to in Article 5 of the Directive” after “(No. 2 of 2017)”,

(xiii) in paragraph 18, by the insertion of “in so far as such second- mentioned offence is an offence referred to in Article 5 of the Directive” after “17(a) or (b)”, and

(xiv) in paragraph 19, by the insertion of “in so far as such second- mentioned offence is an offence referred to in Article 5 of the Directive” after “17 and 17A”.

/images/ls

GIVEN under my Official Seal,

23 September, 2019.

CHARLES FLANAGAN,

Minister for Justice and Equality.

1 OJ L 127, 29.4.2014, p. 39

S.I. No. 343/1996 –

Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996.

S.I. No. 343 of 1996.

CRIMINAL JUSTICE ACT, 1994 (Section 46(6)) REGULATIONS, 1996.

WHEREAS the Government are empowered by section 46 (6) of the Criminal Justice Act, 1994 (No. 15 of 1994), by regulations to make such modifications of that Act as appear to it to be necessary or expedient for the purpose of adapting to confiscation co-operation orders any of the provisions of that Act relating to confiscation orders;

AND WHEREAS it appears to the Government that it is both necessary and expedient to make modifications to sections 2 and 3 and Part III of that Act for that purpose;

AND WHEREAS a draft of these Regulations making those modifications has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House;

NOW, therefore, the Government in exercise of the powers conferred on it by section 46 (6) of the Criminal Justice Act, 1994 , hereby makes the following Regulations:

1. (1) These Regulations may be cited as the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996.

(2) These Regulations shall come into operation on the 3rd day of December, 1996.

2. In these Regulations, the “Act of 1994” means the Criminal Justice Act, 1994 (No. 15 of 1994).

3. In so far as it relates to confiscation co-operation orders, the Act of 1994 is hereby modified, for the purpose of adapting it to such orders, to the extent that sections 2 and 3 and Part III of that Act shall be read as set out in the Schedule to these Regulations.

SCHEDULE

CRIMINAL JUSTICE ACT, 1994

Regulation 3.

Commencement.

2.— The provisions of this Act, as modified for the purpose of adapting it to confiscation co-operation orders, shall come into operation upon the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996.

Interpretation.

3.— (1) In this Act—

“conduct” means conduct corresponding to an offence in respect of which a confiscation order could be made under section 9 of this Act;

“confiscation order” means an order made under section 4(4) or 9(1) of this Act;

“controlled drug” has the same meaning as in section 2 of the Misuse of Drugs Act, 1977 ;

“corresponding law” has the same meaning as in section 20 (2) of the Misuse of Drugs Act, 1977 ;

“dealing with property” shall be construed in accordance with section 24(8) of this Act;

“defendant” means a person against whom a confiscation co-operation order has been made, or a person against whom proceedings which may result in a confiscation co-operation order being made have been, or are to be, instituted in a designated country;

“drug trafficking” means doing or being concerned in any of the following, whether in the State or elsewhere, that is to say —

(a) producing or supplying a controlled drug where the production or supply contravenes any regulations made under section 5 of the Misuse of Drugs Act, 1977 , and in force at the material time (whether before or after the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996) or a corresponding law,

(b) transporting or storing a controlled drug where possession of the drug contravenes section 3 of that Act or a corresponding law,

(c) importing or exporting a controlled drug where the importation or exportation contravenes any such regulations as mentioned in paragraph (a) of this definition or a corresponding law,

(d) doing any act, whether in the State or elsewhere and whether before or after the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996, in relation to property obtained, whether directly or indirectly, from anything done in relation to a controlled drug, that amounts to an offence under section 31 of this Act or would have amounted to such an offence if that section had been in operation at the time when the act was done or, in the case of an act done in a country or territory outside the State, would amount or have amounted to such an offence if done in corresponding circumstances in the State (and for the purpose of this definition the references in subsections (1) and (2) of the said section 31 to removing property from the State shall include references to removing it from the country or territory in question), or

(e) using any ship for illicit traffic in controlled drugs in contravention of section 33 or 34 of this Act;

“drug trafficking offence” means any of the following —

(a) an offence under any regulations made under section 5 of the Misuse of Drugs Act, 1977 , involving the manufacture, production, preparation, importation, exportation, supply, offering to supply, distribution or transportation of a controlled drug,

(b) an offence under section 15 of that Act of possession of a controlled drug for unlawful sale or supply,

(c) an offence under section 20 of that Act (assisting in or inducing the commission outside the State of an offence punishable under a corresponding law),

(d) an offence under the Customs Acts in relation to the importation or exportation of a controlled drug or in relation to the fraudulent evasion of any prohibition, restriction or obligation in relation to such importation or exportation,

(e) an offence under section 31 of this Act in relation to the proceeds of drug trafficking,

(f) an offence under section 33 or 34 of this Act, or

(g) an offence of aiding, abetting, counselling or procuring the commission of any of the offences mentioned in paragraphs (a) to (f)) of this definition or of attempting or conspiring to commit any such offence or inciting another person to do so;

“forfeiture order” means an order made under section 61 of this Act;

“interest”, in relation to property, includes right;

“Minister” means the Minister for Justice;

“proceeds of drug trafficking” has the meaning assigned to it by section 5(1)(a) of this Act;

“property” includes money and all other property, real or personal, heritable or moveable, including choses in action and other intangible or incorporeal property;

“realisable property” means—

(a) in relation to a confiscation co-operation order made in respect of specified property, the property which is specified in the order; and

(b) in any other case—

(i) any property held by the defendant, and

(ii) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act,

but does not include property which is the subject of—

(a) an order under section 30 of the Misuse of Drugs Act, 1977 (forfeiture orders), or

(b) an order under section 4 (confiscation orders: drug trafficking offences), section 9 (confiscation orders: offences other than drug trafficking offences) or section 61 (forfeiture orders) of this Act;

“receiver” means a person appointed as a receiver under section 20(2) or 24(7) of this Act;

“restraint order” has the meaning assigned to it by section 24 of this Act;

“value of proceeds of drug trafficking” has the meaning assigned to it by section 5(1)(b) of this Act.

(3) Subject to the provisions of subsections (4) to (12) of this section, for the purposes of this Act the value of property (other than cash) in relation to any person holding the property –

(a) where any other person holds an interest in the property, is –

(i) the market value of the first-mentioned person’s beneficial interest in the property, less

(ii) the amount required to discharge any incumbrance on that interest, and

(b) in any other case, is its market value.

(4) References in this Act to the value at any time (referred to in subsection (5) of this section as “the material time”) of a person’s proceeds of drug trafficking or, as the case may be, of any property obtained by a person as a result of or in connection with conduct are references to –

(a) the value of the said proceeds or property to the recipient when he obtained them or it, adjusted to take account of subsequent changes in the value of money, or

(b) where subsection (5) of this section applies, the value there mentioned,

whichever is the greater.

(5) If at the material time the recipient holds –

(a) the proceeds or property which he obtained (not being cash), or

(b) property which, in whole or in part, directly or indirectly represents in his hands the proceeds or property which he obtained,

the value referred to in subsection (4)(b) of this section is the value to him at the material time of the proceeds or property mentioned in paragraph (a) of this subsection or, as the case may be, of the proceeds or property mentioned in paragraph (b) of this subsection, so far as it so represents the proceeds or property which he obtained.

(6) Subject to subsection (12) of this section, references in this Act to the value at any time (referred to in subsection (7) of this section as “the material time”) of a gift caught by this Act or to a payment or reward are references to –

(a) the value of the gift, payment or reward to the recipient when he received it adjusted to take account of subsequent changes in the value of money, or

(b) where subsection (7) of this section applies, the value there mentioned,

whichever is the greater.

(7) Subject to subsection (12) of this section, if at the material time the recipient holds –

(a) the property which he received (not being cash), or

(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received,

the value referred to in subsection (6) of this section is the value to him at the material time of the property mentioned in paragraph (a) of this subsection or, as the case may be, of the property mentioned in paragraph (b) of this subsection so far as it so represents the property which he received.

(9) For the purposes of the provisions of this Act relating to drug trafficking, a gift (including a gift made before the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996) is caught by this Act if –

(a) it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him, or

(b) it was made by the defendant at any time and was a gift of property –

(i) which was received by the defendant in connection with drug trafficking carried on by him or another, or

(ii) which in whole or in part directly or indirectly represented in the defendant’s hands property received by him in that connection.

(10) For the purposes of the provisions of this Act relating to conduct, a gift (including a gift made before the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996) is caught by this Act if –

(a) it was made by the defendant at any time after the conduct to which an external confiscation order relates, and

(b) the court considers it appropriate in all the circumstances to take the gift into account.

(12) For the purposes of this Act –

(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant, and

(b) in those circumstances, subsections (3) to (10) of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) of this subsection bears to the value of the consideration provided by the defendant.

(13) This Act applies to property wherever situated.

(15) A reference in this Act to property obtained, or to a pecuniary advantage derived, in connection with drug trafficking or conduct includes references to property obtained, or to a pecuniary advantage derived, both in that connection and in some other connection and whether obtained or derived before or after the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996.

(16) The following provisions shall have effect for the interpretation of this Act, namely,

(a) property is held by any person if he holds any interest in it,

(b) references to property held by a person include a reference to property vested in his trustee within the meaning of Part V of the Bankruptcy Act, 1988 or liquidator,

(c) references to an interest held by a person beneficially in property include a reference to an interest which would be held by him beneficially if the property were not so vested,

(d) property is transferred by one person to another if the first person transfers or grants to the other any interest in the property,

(e) proceedings for an offence are instituted in a designated country when –

(i) the defendant has been notified in accordance with the laws of the designated country that the competent authorities of that country have begun proceedings against him in respect of an offence, or

(ii) an application has been made to a court in a designated country for an external confiscation order,

and where the application of this section would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times,

(f) proceedings for an offence are concluded –

(i) when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an external confiscation order being made in the proceedings, or

(ii) on the satisfaction of an external confiscation order made in the proceedings in accordance with the law of the country in which it was made,

(i) a confiscation co-operation order is satisfied when no amount is due under it,

(j) an order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside.

(17) In this Act, a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment (including this Act).

PART III

ENFORCEMENT, ETC. OF CONFISCATION CO-OPERATION ORDERS

Enforcement of confiscation co-operation orders.

19.– (1) Where a court makes a confiscation co-operation order, then (without prejudice to the provisions of section 22 of this Act enabling property of the defendant in the hands of a receiver appointed under this Act to be applied in satisfaction of the confiscation co-operation order) the order may be enforced by the Director of Public Prosecutions at any time after it is made (or, if the order provides for payment at a later time, then at any time after the later time) as if it were a judgment of the High Court for the payment to the State of the sum specified in the order (or of any lesser sum remaining due under the order), save that nothing in this subsection shall enable a person to be imprisoned.

(2) Subject to subsection (3) of this section, if, at any time after payment of a sum due under a confiscation co-operation order has become enforceable in the manner provided for by subsection (1) of this section, it is reported to the High Court, by the Director of Public Prosecutions that any such sum or any part thereof remains unpaid, the court may, without prejudice to the validity of anything previously done under the order or to the power to enforce the order in the future in accordance with subsection (1) of this section, order that the defendant shall be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite to the amount set out therein of the confiscation co-operation order remaining unpaid.

(3) An order under subsection (2) of this section shall not be made unless the defendant has been given a reasonable opportunity to make any representations to the court that the order should not be made and the court has taken into account any representations so made and any representations made by the Director of Public Prosecutions in reply.

(4) Any term of imprisonment imposed under subsection (2) of this section shall be reduced in proportion to any sum or sums paid or recovered from time to time under the confiscation co-operation order.

TABLE

Amount outstanding under confiscation co-operation order

Period of imprisonment

Not exceeding £500

45 days

Exceeding £500 but not exceeding £1,000

3 months

Exceeding £1,000 but not exceeding £2,500

4 months

Exceeding £2,500 but not exceeding £5,000

6 months

Exceeding £5,000 but not exceeding £10,000

9 months

Exceeding £10,000 but not exceeding £20,000

12 months

Exceeding £20,000 but not exceeding £50,000

18 months

Exceeding £50,000 but not exceeding £100,000

2 years

Exceeding £100,000 but not exceeding £250,000

3 years

Exceeding £250,000 but not exceeding £1 million

5 years

Exceeding £1 million

10 years

Realisation of property

20.- (1) Where –

(a) a confiscation co-operation order has been made under this Act,

and

(c) the confiscation co-operation order has not been satisfied,

the High Court may, on an application by the Director of Public Prosecutions, exercise the powers conferred by subsections (2) to (6) of this section.

(2) The court may appoint a person to be a receiver in respect of realisable property.

(3) The court may empower a receiver appointed under subsection (2) of this section or under section 24 of this Act to take possession of the property subject to such conditions or exceptions as may be specified by the court.

(4) The court may order any person having possession or control of realisable property to give possession of it to the receiver.

(5) The court may empower the receiver to realise any realisable property in such manner as the court may direct.

(6) The court may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of any gift caught by this Act as the court may direct and the court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

(7) The court shall not, in respect of any property, exercise the powers conferred by subsection (3), (4), (5) or (6) of this section unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court.

Interest on sums unpaid under confiscation co-operation orders.

21.- (1) Subject to subsection (2) of this section, if any sum required to be paid by a person under a confiscation co-operation order is not paid when it is required to be paid (whether forthwith on the making of an order or at the time specified by the court), that person shall be liable to pay interest on that sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation co-operation order.

(2) The amount of interest payable under subsection (1) of this section shall be disregarded for the purposes of calculating the term of imprisonment to be imposed by virtue of section 19 of this Act.

(3) The rate of interest payable under subsection (1) of this section shall be that for the time being applying to a High Court civil judgment debt.

Currency of payments under confiscation co-operation orders.

21A.- Where a sum of money payable or remaining to be paid under a confiscation co-operation order is expressed in a currency other than the currency of the State, then for the purposes of any action taken under the Act of 1994 as modified by these Regulations, the amount shall be converted into the currency of the State at the rate of exchange prevailing on the date of the making of the order, between that currency and the currency of the State

Application of proceeds of realisation.

22.- (1) Money paid or recovered in respect of a confiscation co-operation order (including any variation of such an order) may, to the extent necessary, be applied to meet expenses incurred in exercising any powers under this Act and the remuneration of any person employed for that purpose.

(2) Money paid or recovered in respect of a confiscation co-operation order shall, following the payment of any expenses or remuneration in accordance with subsection (1) of this section, be applied towards satisfaction of the confiscation co-operation order and paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.

Cases in which restraint orders may be made.

23.- (1) The powers conferred on the High Court by section 24 of this Act shall be exercisable where-

(a) (i) proceedings have been instituted against the defendant in a designated country,

(ii) the proceedings have not been concluded, and

(iii) either a confiscation co-operation order has been made in connection with the proceedings or it appears to the court that there are reasonable grounds for thinking that such an order may be made in connection with the proceedings,

or

(b) (i) the court is satisfied that proceedings are to be instituted against a person in a designated country, and

(ii) it appears to the court that there are reasonable grounds for thinking that an application may be made for a confiscation co-operation order in connection with the proceedings.

(3) Where the court has made an order under section 24 of this Act by virtue of subsection (1)(b) of this section, the court shall discharge the order if the proposed proceedings are not instituted or the application is not made within such time as the court considers reasonable.

Restraint orders.

24.- (1) The High Court may by order (in this Act referred to as a “restraint order”) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in that order.

(2) Without prejudice to the generality of subsection (1) of this section, a restraint order may make such provision as the court thinks fit for living expenses and legal expenses.

(3) A restraint order may apply –

(a) where an application under subsection (4) of this section relates to a confiscation co-operation order made in respect of specified property, to property which is specified in that order, and

(b) in any other case –

(i) to all realisable property held by a specified person, whether the property is described in the order or not, and

(ii) to realisable property held by a specified person, being property transferred to him after the making of the order.

(4) A restraint order –

(a) may be made on an application by or on behalf of the Government of a designated country, with the consent of the Minister, which may be made ex parte and otherwise than in public, and

(b) may provide for service on, or the provision of notice to, persons affected by the order in such manner as the court may direct.

(5) A restraint order –

(a) may be discharged or varied in relation to any property, and

(b) shall be discharged on the conclusion of the proceedings or of the application in question.

(6) An application for the discharge or variation of a restraint order may be made by any person affected by it.

(7) Where the High Court has made a restraint order, the court may at any time appoint a receiver –

(a) to take possession of any realisable property, and

(b) in accordance with the court’s directions, to manage or otherwise deal with any property in respect of which he is appointed,

subject to such exceptions and conditions as may be specified by the court, and may require any person having possession or control of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.

(8) For the purposes of this Act, dealing with property held by any person includes (without prejudice to the generality of the expression) –

(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt, and

(b) removing the property from the State.

(9) Where the High Court has made a restraint order, a member of the Garda Síochána or an officer of customs and excise may, for the purpose of preventing any realisable property being removed from the State, seize the property.

(10) Property seized under subsection (9) of this section shall be dealt with in accordance with the court’s directions.

Registration of restraint orders

25.- (1) Where a restraint order is made, the registrar of the High Court shall, in the case of registered land, furnish the Registrar of Titles with notice of the order and the Registrar of Titles shall thereupon cause an entry to be made in the register under the Registration of Title Act, 1964 , inhibiting, until such time as the order is discharged, any dealing with any registered land or charge which appears to be affected by the order.

(2) Where notice of an order has been given under subsection (1) of this section and the order is varied, the registrar of the High Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall thereupon cause the entry made under subsection (1) of this section to be varied to that effect.

(3) Where notice of an order has been given under subsection (1) of this section and the order is discharged, the registrar of the High Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall cancel the entry made under subsection (1) of this section.

(4) Where a restraint order is made, the registrar of the High Court shall, in the case of unregistered land, furnish the Registrar of Deeds with notice of the order and the Registrar of Deeds shall thereupon cause the notice to be registered in the Registry of Deeds pursuant to the Registration of Deeds Act, 1707.

(5) Where notice of an order has been given under subsection (4) of this section and the order is varied, the registrar of the High Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cause the entry made under subsection (4) of this section to be varied to that effect.

(6) Where notice of an order has been given under subsection (4) of this section and the order is discharged, the registrar of the High Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cancel the entry made under subsection (4) of this section.

(7) Where a restraint order is made which applies to an interest in a company or to the property of a company, the registrar of the High Court shall furnish the Registrar of Companies with notice of the order and the Registrar of Companies shall thereupon cause the notice to be entered in the Register of Companies maintained under the Companies Acts, 1963 to 1990.

(8) Where notice of an order has been given under subsection (7) of this section and the order is varied, the registrar of the High Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cause the entry made under subsection (7) of this section to be varied to that effect.

(9) Where notice of an order has been given under subsection (7) of this section and the order is discharged, the registrar of the High Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cancel the entry made under subsection (7) of this section.

Exercise of powers by High Court or receiver.

26.- (1) This section applies to the powers conferred on the High Court by section 20 or 24 of this Act or on a receiver appointed under either of those sections.

(2) Subject to the provisions of this section, the powers shall be exercised with a view to recovering property which is liable to be recovered under a confiscation co-operation order or, as the case may be, with a view to making available for recovery property which may become liable to be recovered under any confiscation co-operation order that may be made in the defendant’s case.

(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

(4) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of any such gift, to retain or recover the value of any property held by him.

(5) In exercising the powers no account shall be taken of any obligations of the defendant or of the recipient of any such gift that conflict with the obligation to satisfy the confiscation co-operation order.

Receivers: supplementary provisions

27.- Where a receiver takes any action –

(a) in relation to property which is not realisable property, being action which he would be entitled to take if it were such property,

(b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,

he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.

Bankruptcy of defendant, etc.

28.- (1) Where a person who holds realisable property is adjudicated bankrupt —

(a) property for the time being subject to a restraint order made before the order adjudicating him bankrupt, and

(b) any proceeds of property realised by virtue of section 20(5) or (6) or 24 (7) of this Act, for the time being in the hands of a receiver,

is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act, 1988 .

(2) Where a person has been adjudicated bankrupt, the powers conferred on the High Court or on a receiver by section 20 or 24 of this Act shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift caught by this Act –

(a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a restraint order, and

(b) any decision as to whether it is void made under any of those sections after the discharge of the restraint order shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(4) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before 1st January, 1989, this section shall have effect with the modification that for references to the property of the bankrupt for the purposes of the said Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

Property subject to restraint order dealt with by Official Assignee.

29.- (1) Without prejudice to the generality of any provision of any other enactment, where –

(a) the Official Assignee or a trustee appointed under the provisions of Part V of the Bankruptcy Act, 1988 , seizes or disposes of any property in relation to which his functions are not exercisable because it is for the time being subject to a restraint order, and

(b) at the time of the seizure or disposal he believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of the court or otherwise) to seize or dispose of that property,

he shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence in so acting, and he shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his acting in connection with those proceedings.

(2) Where the Official Assignee or a trustee appointed as aforesaid incurs expenses in respect of such property as is mentioned in paragraph (a) of subsection (1) of this section and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order, he shall be entitled (whether or not he has seized or disposed of that property so as to have a lien) to payment of those expenses under section 22 of this Act.

Winding up of company holding realisable property.

30.- (1) Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for a voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to-

(a) property for the time being subject to a restraint order made before the relevant time, and

(b) any proceeds of property realised by virtue of section 20(5) or (6) or 24(7) of this Act for the time being in the hands of a receiver.

(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred by section 20 or 24 of this Act on the High Court or on a receiver shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable –

(a) so as to inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) In this section –

“company” means any company which may be wound up under the Companies Acts, 1963 to 1990;

“relevant time” means –

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up,

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

(c) in any other case where such an order has been made, the time of the making of the order.

GIVEN UNDER THE OFFICIAL SEAL OF THE GOVERNMENT,

THIS 26th DAY OF NOVEMBER, 1996

DICK SPRING

TÁNAISTE

EXPLANATORY NOTE

These Regulations make modifications to the Criminal Justice Act, 1994 for the purpose of adapting to confiscation co-operation orders provisions of the Act relating to confiscation orders.

S.I. No. 63/1997 – Criminal Justice Act, 1994 (Section 37 (1)) Order, 1997.

S.I. No. 63 of 1997.

CRIMINAL JUSTICE ACT, 1994 (SECTION 37 (1)) ORDER, 1997.

I, DICK SPRING, T.D., Tánaiste and Minister for Foreign Affairs, in exercise of the powers conferred on me by Section 37 (1) of the Criminal Justice Act, 1994 (No. 15 of 1994), hereby order as follow:

1. This Order may be cited as the Criminal Justice Act, 1994 (Section 37(1)) Order, 1997.

2. This Order shall come into operation on the 3rd day of March 1997.

3. Each of the states specified in the Schedule to this Order is hereby declared to be a Convention state for the purposes of the Criminal Justice Act, 1994 .

SCHEDULE

SPECIFIED STATES

Republic of Afghanistan, People’s Democratic Republic of Algeria, Antigua and Barbuda, Republic of Argentina, Republic of Armenia, Australia, Republic of Azerbaijan, Commonwealth of the Bahamas, State of Bahrain, People’s Republic of Bangladesh, Barbados, Republic of Belarus, Kingdom of Belgium, Belize, Kingdom of Bhutan, Republic of Bolivia, Republic of Bosnia and Herzegovina, Republic of Botswana, Federative Republic of Brazil, Sultanate of Brunei (Negara Brunei Darussalam), Republic of Bulgaria, Burkina Faso, Republic of Burundi, Republic of Cameroon, Canada, Republic of Cape Verde, Republic of Chad, Republic of Chile, People’s Republic of China, Republic of Colombia, Republic of Costa Rica, Republic of Cte d’Ivoire, Republic of Croatia, Republic of Cuba, Republic of Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth of Dominica, Dominican Republic, Republic of Ecuador, Arab Republic of Egypt, Republic of El Salvador, Federal Democratic Republic of Ethiopia, Republic of Fiji, Republic of Finland, Republic of France, Republic of the Gambia, Federal Republic of Germany, Republic of Ghana, Grenada, Republic of Guatemala, Republic of Guinea, Republic of Guinea-Bissau, Cooperative Republic of Guyana, Republic of Haiti, Hellenic Republic, Republic of Honduras, Republic of Hungary, Republic of India, Islamic Republic of Iran, Republic of Italy, Jamaica, Japan, Hashemite Kingdom of Jordan, Republic of Kenya, Republic of Kyrgyzstan, Republic of Latvia, Republic of Lebanon, Kingdom of Lesotho, Socialist People’s Libyan Arab Jamahiriya, Grand Duchy of Luxembourg, the former Yugoslav Republic of Macedonia, Madagascar, Republic of Malawi, Malaysia, Republic of Mali, Republic of Malta, Islamic Republic of Mauritania, United States of Mexico, Republic of Moldova, Principality of Monaco, Kingdom of Morocco, Union of Myanmar, Kingdom of Nepal, Kingdom of the Netherlands, Republic of Nicaragua, Republic of Niger, Federal Republic of Nigeria, Kingdom of Norway, Sultanate of Oman, Islamic Republic of Pakistan, Republic of Panama, Republic of Paraguay, Republic of Peru, Republic of the Philippines, Republic of Poland, Republic of Portugal, State of Qatar, Republic of Romania, Russian Federation, Federation of Saint Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Democratic Republic of Sao Tome and Principe, Kingdom of Saudi Arabia, Republic of Senegal, Republic of Seychelles, Republic of Sierra Leone, Slovakia, Republic of Slovenia, Kingdom of Spain, Democratic Socialist Republic of Sri Lanka, Republic of Sudan, Republic of Suriname, Kingdom of Swaziland, Kingdom of Sweden, Syrian Arab Republic, Republic of Tajikistan, United Republic of Tanzania, Togo, Tonga, Republic of Trinidad and Tobago, Republic of Tunisia, Republic of Turkey, Republic of Turkmenistan, Republic of Uganda, Ukraine, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America, Eastern Republic of Uruguay, Republic of Uzbekistan, Republic of Venezuela, People’s Democratic Republic of Yemen, Federal Republic of Yugoslavia, Republic of Zambia, Republic of Zimbabwe.

GIVEN at Dublin under my Official Seal, this 3rd day of February, 1997.

DICK SPRING,

Tánaiste and Minister for Foreign Affairs.

EXPLANATORY NOTE.

The effect of this Order is to specify, in accordance with Section 37 (1) of the Criminal Justice Act, 1994 (No. 15), states which are party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.

 

S.I. No. 436/2016 –

Criminal Justice Act 1994 (Section 44) Regulations 2016.

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 9th August, 2016.

I, FRANCES FITZGERALD, Minister for Justice and Equality, in exercise of the powers conferred on me by section 44 of the Criminal Justice Act 1994 (No. 15 of 1994) (as adapted by the Justice and Law Reform (Alteration of Name of Department and Title of Minister) Order 2011 ( S.I. No. 138 of 2011 )), hereby make the following Regulations with respect to which, pursuant to that section, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House:

1. These Regulations may be cited as the Criminal Justice Act 1994 (Section 44) Regulations 2016.

2. These Regulations shall come into operation on the 3rd day of August, 2016.

3. The sum of €1,000 is hereby prescribed as the prescribed sum for the purposes of section 38 of the Criminal Justice Act 1994 .

4. The Criminal Justice Act, 1994 (Section 44) Regulations, 1996 (S.I. 167 of 1996) are hereby revoked.

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GIVEN under my Official Seal, this

1 August 2016.

FRANCES FITZGERALD,

Minister for Justice and Equality.

 

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”.

S.I. No. 167/1996 –

Criminal Justice Act, 1994 (Section 44) Regulations, 1996.

S.I. No. 167 of 1996.

CRIMINAL JUSTICE ACT, 1994 (SECTION 44) REGULATIONS, 1996.

I, NORA OWEN, Minister for Justice, in exercise of the powers conferred on me by section 44 of the Criminal Justice Act, 1994 (No. 15 of 1994), hereby make the following Regulations with respect to which, pursuant to that section, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House:

1. These Regulations may be cited as the Criminal Justice Act, 1994 (Section 44) Regulations, 1996.

2. These Regulations shall come into operation on the 14th day of June, 1996.

3. The sum of £5,000 is hereby prescribed as the prescribed sum for the purposes of section 38 of the Criminal Justice Act, 1994 .

GIVEN under my Official Seal, this 6th day of June, 1996.

NORA OWEN,

Minister for Justice.

EXPLANATORY NOTE.

These Regulations prescribe a sum of £5,000 for the purposes of section 38 of the Criminal Justice Act, 1994 .

 

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”.