arrangement of sections preliminary and general … · arrangement of sections part 1 preliminary...

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Number 1 of 2005

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PROCEEDS OF CRIME (AMENDMENT) ACT 2005

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ARRANGEMENT OF SECTIONS

PART 1

Preliminary and General

Section

1. Short title, collective citation and construction.

2. Interpretation.

PART 2

Amendments to Principal Act

3. Amendment of section 1 (interpretation) of Principal Act.

4. Amendment of section 2 (interim order) of Principal Act.

5. Amendment of section 3 (interlocutory order) of PrincipalAct.

6. Amendment of section 4 (disposal order) of Principal Act.

7. New section 4A in Principal Act.

8. Amendment of section 6 (order in relation to property thesubject of interim order or interlocutory order) of Prin-cipal Act.

9. Amendment of section 8 (evidence and proceedings underAct) of Principal Act.

10. Non-application to Principal Act of section 11(7) of Statuteof Limitations 1957.

11. Amendment of section 9 (affidavit specifying property andincome of respondent) of Principal Act.

12. New sections 16A and 16B in Principal Act.

2

[No. 1.] [2005.]Proceeds of Crime (Amendment) Act2005

PART 3

Amendments to Act of 1996

Section

13. Amendment of section 1 (interpretation) of Act of 1996.

14. Amendment of section 4 (objectives of Bureau) of Act of1996.

15. Amendment of section 5 (functions of Bureau) of Act of1996.

16. Amendment of section 14 (search warrants) of Act of 1996.

17. Amendment of maximum amount of certain fines in Act of1996.

18. New sections 14A, 14B and 14C in Act of 1996.

PART 4


19. Amendment of Title to Part VI of Act of 1994.

20. Amendment of section 38 (seizure and detention) of Act of1994.

21. Amendment of section 39 (forfeiture of seized cash) of Actof 1994.

22. Amendment of section 43 (interpretation of Part VI) of Actof 1994.

PART 5


23. New sections 2A, 2B and 2C in Act of 2001.

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Acts Referred to

Criminal Assets Bureau Act 1996 1996, No. 31

Criminal Justice Act 1994 1994, No. 15

Ethics in Public Office Act 1995 1995, No. 22

Local Government Act 2001 2001, No. 37

Official Secrets Act 1963 1963, No. 1

Prevention of Corruption Act 1906 6 Edw. 7. c. 34

Prevention of Corruption Acts 1889 to 2001

Prevention of Corruption (Amendment) Act 2001 2001, No. 27

Proceeds of Crime Act 1996 1996, No. 30

Statute of Limitations 1957 1957, No. 6

Taxes Consolidation Act 1997 1997, No. 39

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Number 1 of 2005

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PROCEEDS OF CRIME (AMENDMENT) ACT 2005

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AN ACT TO MAKE FURTHER PROVISION IN RELATIONTO THE RECOVERY AND DISPOSAL OF PROCEEDS OFCRIME AND FOR THAT PURPOSE TO AMEND THEPROCEEDS OF CRIME ACT 1996, THE CRIMINALASSETS BUREAU ACT 1996, THE CRIMINAL JUSTICEACT 1994 AND THE PREVENTION OF CORRUPTION(AMENDMENT) ACT 2001.

[12th February, 2005]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

Preliminary and General

1.—(1) This Act may be cited as the Proceeds of Crime(Amendment) Act 2005.

(2) The Principal Act and Part 2 of this Act may be cited togetheras the Proceeds of Crime Acts 1996 and 2005.

(3) The Act of 1996 and Part 3 of this Act may be cited togetheras the Criminal Assets Bureau Acts 1996 and 2005.

(4) The Prevention of Corruption Acts 1889 to 2001 and Part 5 ofthis Act may be cited together as the Prevention of Corruption Acts1889 to 2005.

2.—In this Act—

“Act of 1994” means the Criminal Justice Act 1994;

“Act of 1996” means the Criminal Assets Bureau Act 1996;

“Act of 2001” means the Prevention of Corruption (Amendment)Act 2001;

“Principal Act” means the Proceeds of Crime Act 1996.

3

Short title,collective citationand construction.

Interpretation.

Amendment ofsection 1(interpretation) ofPrincipal Act.

4


PART 2

Amendments to Principal Act

3.—Section 1 of the Principal Act is hereby amended—

(a) in subsection (1)—

(i) by the substitution of the following definitions forthose of “the applicant”, “proceeds of crime”, “prop-erty” and “the respondent”:

“ ‘the applicant’ means a person, being amember, an authorised officer or the CriminalAssets Bureau, who has applied to the Court forthe making of an interim order or an interlocu-tory order and, in relation to such an order thatis in force, means, as appropriate, any member,any authorised officer or the Criminal AssetsBureau;

‘proceeds of crime’ means any property obtainedor received at any time (whether before or afterthe passing of this Act) by or as a result of or inconnection with criminal conduct;

‘property’, in relation to proceeds of crime,includes—

(a) money and all other property, real or per-sonal, heritable or moveable,

(b) choses in action and other intangible orincorporeal property, and

(c) property situated outside the State where—

(i) the respondent is domiciled, resident orpresent in the State, and

(ii) all or any part of the criminal conductconcerned occurs therein,

and references to property shall be construed asincluding references to any interest in property;

‘the respondent’ means a person, wherever domi-ciled, resident or present, in respect of whom aninterim order or interlocutory order, or an appli-cation for such an order, has been made andincludes any person who, but for this Act, wouldbecome entitled, on the death of the first-men-tioned person, to any property to which such anorder relates (being an order that is in force andis in respect of that person);”,

and

(ii) by the insertion of the following definitions:

“ ‘consent disposal order’ means an order undersection 3(1A) or 4A(1);

‘criminal conduct’ means any conduct—

[2005.] [No. 1.]Proceeds of Crime (Amendment) Act2005

(a) which constitutes an offence or more thanone offence, or

(b) which occurs outside the State and whichwould constitute an offence or more thanone offence—

(i) if it occurred within the State,

(ii) if it constituted an offence under the lawof the state or territory concerned, and

(iii) if, at the time when an application isbeing made for an interim order orinterlocutory order, any propertyobtained or received at any time(whether before or after the passing ofthis Act) by or as a result of or in con-nection with the conduct is situatedwithin the State;”,

and

(b) by the insertion, after subsection (1), of the following:

“(1A) (a) For the avoidance of doubt, a person shall bedeemed for the purposes of this Act to be inpossession or control of property notwithstand-ing that it (or any part of it)—

(i) is lawfully in the possession of any memberof the Garda Sıochana, any officer of theRevenue Commissioners or any other per-son, having been lawfully seized or other-wise taken by any such member, officer orperson,

(ii) is subject to an interim order or interlocu-tory order or any other order of a courtwhich—

(I) prohibits any person from disposing ofor otherwise dealing with it or dimin-ishing its value, or

(II) contains any conditions or restrictions inthat regard,

or is to the like effect,

or

(iii) is subject to a letting agreement, the subjectof a trust or otherwise occupied by anotherperson or is inaccessible,

and references in this Act to the possession orcontrol of property shall be construedaccordingly.

(b) Paragraph (a)(ii) is without prejudice to sections11(2) and 13(2).”.

5

Pt.2 S.3

Pt.2

Amendment ofsection 2 (interimorder) of PrincipalAct.

Amendment ofsection 3(interlocutoryorder) of PrincipalAct.

6



(a) in subsection (1) by the substitution, for the opening wordsup to and including “officer”, of the following:

“Where it is shown to the satisfaction of the Court onapplication to it ex parte in that behalf by a member, anauthorised officer or the Criminal Assets Bureau”,


“(3A) Without prejudice to sections 3(7) and 6, wherean interim order is in force, the Court may, on applicationto it in that behalf by the applicant or any other person,vary the order to such extent as may be necessary topermit—

(a) the enforcement of any order of a court for thepayment by the respondent of any sum, includ-ing any sum in respect of costs,

(b) the recovery by a county registrar or sheriff ofincome tax due by the respondent pursuant to acertificate issued by the Collector-Generalunder section 962 of the Taxes ConsolidationAct 1997, together with the fees and expensesprovided for in that section, or

(c) the institution of proceedings for, or relating to,the recovery of any other sum owed by therespondent.”,

(c) in subsection (6) by the substitution of the following forparagraph (b):

“(b) in case the application is under subsection (3A)or (4), by the applicant or other person makingthe application to the respondent, unless theCourt is satisfied that it is not reasonably poss-ible to ascertain the respondent’swhereabouts,”,

and

(d) by the addition of the following subsection:

“(7) An application under subsection (1) may be madeby originating motion.”.


(a) in subsection (1)—

(i) by the substitution, for the opening words up to andincluding “section 8”, of the following:

“Where, on application to it in that behalf by amember, an authorised officer or the CriminalAssets Bureau, it appears to the Court on evi-dence tendered by the applicant, which may con-sist of or include evidence admissible by virtue ofsection 8”,


and

(ii) by the substitution, for “the Court shall make”, of“the Court shall, subject to subsection (1A), make”,

(b) by the insertion of the following subsection after subsec-tion (1):

“(1A) On such an application the Court, with the con-sent of all the parties concerned, may make a consent dis-posal order, and section 4A shall apply and have effectaccordingly.”,

(c) by the insertion, after subsection (3), of the following:

“(3A) Without prejudice to subsection (7) and section6, where an interlocutory order is in force, the Court may,on application to it in that behalf by the applicant or anyother person, vary the order to such extent as may benecessary to permit—

(a) the enforcement of any order of a court for thepayment by the respondent of any sum, includ-ing any sum in respect of costs,

(b) the recovery by a county registrar or sheriff ofincome tax due by the respondent pursuant to acertificate issued by the Collector-Generalunder section 962 of the Taxes ConsolidationAct 1997, together with the fees and expensesprovided for in that section, or

(c) the institution of proceedings for, or relating to,the recovery of any other sum owed by therespondent.”,

(d) in subsection (6) by the substitution of the following forparagraph (a):

“(a) in case the application is under subsection (1),(3A) or (4), by the applicant or other personmaking the application to the respondent, unlessthe Court is satisfied that it is not reasonablypossible to ascertain the respondent’swhereabouts,”,

and

(e) by the addition of the following subsection:

“(8) An application under subsection (1) may be madeby originating motion.”.

6.—Section 4 of the Principal Act is hereby amended by theaddition of the following subsection:

“(9) An application under subsection (1) may be made by orig-inating motion.”.

7

Pt.2 S.5

Amendment ofsection 4 (disposalorder) of PrincipalAct.

Pt.2

New section 4A inPrincipal Act.

Amendment ofsection 6 (order inrelation to propertythe subject ofinterim order orinterlocutory order)of Principal Act.

8


7.—The Principal Act is hereby amended by the insertion of thefollowing section after section 4:

“Consentdisposal order.

4A.—(1) Where in relation to any property—

(a) an interlocutory order has been inforce for a period of less than 7years, and

(b) an application is made to the Courtwith the consent of all the partiesconcerned,

the Court may make an order (a ‘consent disposalorder’) directing that the whole or a specified partof the property be transferred to the Minister orto such other person as the Court may determine,subject to such terms and conditions as it mayspecify.

(2) A consent disposal order operates todeprive the respondent of his or her rights (ifany) in or to the property to which the orderrelates and, on its being made, the propertystands transferred to the Minister or that otherperson.

(3) The Minister—

(a) may sell or otherwise dispose of anyproperty transferred to him or herunder this section, and

(b) shall pay into or dispose of for thebenefit of the Exchequer the pro-ceeds of any such disposition as wellas any moneys so transferred.

(4) Before deciding whether to make a consentdisposal order, the Court shall give to any personclaiming ownership of any of the property con-cerned an opportunity to show cause why such anorder should not be made.

(5) The Court shall not make a consent dis-posal order if it is satisfied that there would be aserious risk of injustice if it did so.

(6) Sections 3(7) and 16 apply, with any neces-sary modifications, in relation to a consent dis-posal order as they apply in relation to an inter-locutory order.

(7) This section is without prejudice to section3(1A).”.

8.—Section 6 of the Principal Act is hereby amended by the substi-tution of the following for paragraph (a) of subsection (1):

“(a) the respondent or that other person to discharge thereasonable living and other necessary expenses(including legal expenses in or in relation to pro-ceedings under this Act) incurred or to be incurred


by or in respect of the respondent and his or herdependants or that other person, or”.


(a) in subsection (1) by the substitution of the following forparagraph (b):

“(b) in proceedings under section 3, on affidavit or,where the respondent requires the deponent tobe produced for cross-examination or the courtso directs, in oral evidence,”,

and


“(6) In any proceedings under this Act a document pur-porting to be a document issued by the Criminal AssetsBureau and to be signed on its behalf shall be deemed,unless the contrary is shown, to be such a document andto be so signed.”.

10.—For the avoidance of doubt, it is hereby declared that section11(7) of the Statute of Limitations 1957 does not apply in relation toproceedings under the Principal Act.

11.—Section 9 of the Principal Act is amended by renumbering itas subsection (1) and inserting the following subsection:

“(2) Such an affidavit is not admissible in evidence in any crimi-nal proceedings against that person or his or her spouse, exceptany such proceedings for perjury arising from statements in theaffidavit.”.

12.—The Principal Act is hereby amended by the insertion of thefollowing sections after section 16:

“Admissibilityof certaindocuments.

16A.—(1) The following documents areadmissible in any proceedings under this Act,without further proof, as evidence of any facttherein of which direct oral evidence would beadmissible:

(a) a document constituting part of therecords of a business or a copy ofsuch a document;

(b) a deed;

(c) a document purporting to be signedby a person on behalf of a businessand stating—

(i) either—

(I) that a designated documentor documents constitutesor constitute part of therecords of the business or

9

Pt.2 S.8

Amendment ofsection 8 (evidenceand proceedingsunder Act) ofPrincipal Act.

Non-application toPrincipal Act ofsection 11(7) ofStatute ofLimitations 1957.

Amendment ofsection 9 (affidavitspecifying propertyand income ofrespondent) ofPrincipal Act.

New sections 16Aand 16B inPrincipal Act.

Pt.2 S.12

10


is or are a copy or copiesof such a document ordocuments, or

(II) that there is no entry orother reference in thoserecords in relation to aspecified matter, and

(ii) that the person has personalknowledge of the mattersreferred to in subparagraph (i).

(2) Evidence that is admissible by virtue ofsubsection (1) shall not be admitted if the Courtis of the opinion that in the interests of justice itought not to be admitted.

(3) This section is without prejudice to anyother enactment or any rule of law authorisingthe admission of documentary evidence.

(4) In this section—

‘business’ includes—

(a) an undertaking not carried on forprofit, and

(b) a public authority;

‘deed’ means any document by which an estateor interest in land is created, transferred, chargedor otherwise affected and includes a contract forthe sale of land;

‘document’ includes a reproduction in legibleform of a record in non-legible form;

‘public authority’ has the meaning given to it bysection 2(1) of the Local Government Act 2001and includes a local authority within the meaningof that section;

‘records’ includes records in non-legible form andany reproduction thereof in legible form.

Corruptenrichmentorder.

16B.—(1) For the purposes of this section—

(a) a person is corruptly enriched if heor she derives a pecuniary or otheradvantage or benefit as a result ofor in connection with corrupt con-duct, wherever the conductoccurred;

(b) ‘corrupt conduct’ is any conductwhich at the time it occurred was anoffence under the Prevention ofCorruption Acts 1889 to 2001, theOfficial Secrets Act 1963 or the Eth-ics in Public Office Act 1995;

(c) ‘property’ includes—


(i) money and all other property,real or personal, heritable ormoveable,

(ii) choses in action and other intan-gible or incorporeal property,and

(iii) property situated outside theState,

and references to property shall beconstrued as including references toany interest in property.

(2) Where, on application to it in that behalf bythe applicant, it appears to the Court, on evidencetendered by the applicant, consisting of or includ-ing evidence admissible by virtue of subsection(5), that a person (a ‘defendant’) has been cor-ruptly enriched, the Court may make an order (a‘corrupt enrichment order’) directing the defend-ant to pay to the Minister or such other personas the Court may specify an amount equivalentto the amount by which it determines that thedefendant has been so enriched.

(3) Where—

(a) the defendant is in a position to bene-fit others in the exercise of his orher official functions,

(b) another person has benefited fromthe exercise, and

(c) the defendant does not account satis-factorily for his or her property orfor the resources, income or sourceof income from which it wasacquired,

it shall be presumed, until the contrary is shown,that the defendant has engaged in corruptconduct.

(4) In any proceedings under this section theCourt may, on application to it ex parte in thatbehalf by the applicant, make an order pro-hibiting the defendant or any other person havingnotice of the order from disposing of or otherwisedealing with specified property of the defendantor diminishing its value during a period specifiedby the Court.

(5) Where in any such proceedings a memberor an authorised officer states on affidavit or,where the respondent requires the deponent tobe produced for cross-examination or the Courtso directs, in oral evidence that he or she believesthat the defendant—

(a) has derived a specified pecuniary orother advantage or benefit as aresult of or in connection with cor-rupt conduct,

(b) is in possession or control of specifiedproperty and that the property or a

11

Pt.2 S.12

Pt.2 S.12

Amendment ofsection 1(interpretation) ofAct of 1996.

12

[No. 1.] [2005.]Proceeds of Crime (Amendment) Act2005part of it was acquired, directly orindirectly, as a result of or in con-nection with corrupt conduct, or

(c) is in possession or control of specifiedproperty and that the property or apart of it was acquired, directly orindirectly, with or in connectionwith the property referred to inparagraph (b),

then, if the Court is satisfied that there arereasonable grounds for the belief aforesaid, thestatement shall be evidence of the mattersreferred to in any or all of paragraphs (a) to (c),as may be appropriate.

(6) (a) In any such proceedings, on an appli-cation to it in that behalf by theapplicant, the Court may make anorder directing the defendant to filean affidavit specifying—

(i) the property owned by thedefendant, or

(ii) the income and sources ofincome of the defendant, or

(iii) both such property and suchincome or sources.

(b) Such an affidavit is not admissible inevidence in any criminal pro-ceedings against the defendant orhis or her spouse, except any suchproceedings for perjury arising fromstatements in the affidavit.

(7) Sections 14 to 14C shall apply, with thenecessary modifications, in relation to assets orproceeds deriving from unjust enrichment as theyapply to assets or proceeds deriving from crimi-nal conduct.

(8) The standard of proof required to deter-mine any question arising in proceedings underthis section as to whether a person has been cor-ruptly enriched and, if so, as to the amount ofsuch enrichment shall be that applicable in civilproceedings.

(9) The rules of court applicable in civil pro-ceedings shall apply in relation to proceedingsunder this section.”.

PART 3


13.—Section 1(1) of the Act of 1996 is hereby amended by theaddition of the following definitions:

“ ‘criminal conduct’ means any conduct which—

(a) constitutes an offence or more than one offence, or


(b) where the conduct occurs outside the State, consti-tutes an offence under the law of the state or terri-tory concerned and would constitute an offence ormore than one offence if it occurred within the State;

‘place’ includes a dwelling;”.

14.—Section 4 of the Act of 1996 is hereby amended by the substi-tution of references to “criminal conduct” for the references to “cri-minal activity”.

15.—Section 5(1) of the Act of 1996 is hereby amended—

(a) by the substitution of references to “criminal conduct” forthe references to “criminal activity”, and

(b) by the insertion of “an authority with functions related tothe recovery of proceeds of crime,” after “being”.

16.—Section 14 of the Act of 1996 is hereby amended—

(a) in subsections (1), (2) and (4), by the substitution of refer-ences to “criminal conduct” for the references in thosesubsections to “criminal activities”,

(b) in subsection (4)—

(i) by the deletion of “within one week of the date ofissuing of the warrant” and the insertion of “withina period to be specified in the warrant”, and

(ii) by the deletion of “any material found at that place,or any material” and the insertion of “any material(other than material subject to legal privilege) foundat that place, or any such material”,

(c) by the insertion of the following subsection after subsec-tion (4):

“(4A) The period to be specified in the warrant shallbe one week, unless it appears to the judge that anotherperiod, not exceeding 14 days, would be appropriate in theparticular circumstances of the case.”,

(d) in subsection (5), by substituting “subsection (2)” for “sub-section (3)”,

(e) by the insertion of the following subsection after subsec-tion (5):

“(5A) The authority conferred by subsection (4) toseize and retain any material includes, in the case of adocument or record, authority—

(a) to make and retain a copy of the document orrecord, and

(b) where necessary, to seize and retain any com-puter or other storage medium in which anyrecord is kept.”,

13

Pt.3 S.13

Amendment ofsection 4 (objectivesof Bureau) of Actof 1996.

Amendment ofsection 5 (functionsof Bureau) of Actof 1996.

Amendment ofsection 14 (searchwarrants) of Act of1996.

Pt.3 S.16

Amendment ofmaximum amountof certain fines inAct of 1996.

New sections 14A,14B and 14C in Actof 1996.

14


(f) by the insertion of the following subsection after subsec-tion (6):

“(6A) A bureau officer who is a member of the GardaSıochana acting under the authority of a warrant underthis section may—

(a) operate any computer at the place which is beingsearched or cause it to be operated by a personaccompanying the member for that purpose,and

(b) require any person at that place who appears tothe member to have lawful access to the infor-mation in the computer—

(i) to give to the member any password neces-sary to operate it,

(ii) otherwise to enable the member to examinethe information accessible by the computerin a form in which it is visible and legible, or

(iii) to produce the information to the memberin a form in which it can be removed andin which it is, or can be made, visible andlegible,”,

and

(g) by the substitution of the following subsection for subsec-tion (9):

“(9) In this section—

‘computer at the place which is being searched’ includesany other computer, whether at that place or at any otherplace, which is lawfully accessible by means of that com-puter, and

‘material’ includes a copy of the material and a documentor record.”.

17.—Sections 11(2)(a), 12(2)(a), 13(2)(a), 14(7), 15(2)(a) and 16(2)of the Act of 1996 are hereby amended by the substitution of“\3,000” for “£1,500” in each case.

18.—The Act of 1996 is hereby amended by the insertion of thefollowing sections after section 14:

“Order tomake materialavailable.

14A.—(1) For the purposes of an investigationinto whether a person has benefited from assetsor proceeds deriving from criminal conduct or isin receipt of or controls such assets or proceedsa bureau officer who is a member of the GardaSıochana may apply to a judge of the DistrictCourt for an order under this section in relationto making available any particular material ormaterial of a particular description.

(2) On such an application the judge, ifsatisfied—


(a) that there are reasonable grounds forsuspecting that the person has ben-efited from such assets or proceedsor is in receipt of or controls suchassets or proceeds, and

(b) that the material concerned isrequired for the purposes of suchan investigation,

may order that any person who appears to him orher to be in possession of the material shall—

(i) produce the material to the memberso that he or she may take it away,or

(ii) give the member access to it within aperiod to be specified in the order.

(3) The period to be so specified shall be oneweek, unless it appears to the judge that anotherperiod would be appropriate in the particular cir-cumstances of the case.

(4) (a) An order under this section inrelation to material in any placemay, on the application of themember concerned, require anyperson who appears to the judge tobe entitled to grant entry to theplace to allow the member to enterit to obtain access to the material.

(b) Where a person required under para-graph (a) to allow the member toenter a place does not allow him orher to do so, section 14 shall haveeffect, with any necessary modifi-cations, as if a warrant had beenissued under that section authoris-ing him or her to search the placeand any person found there.

(5) Where such material consists of infor-mation contained in a computer, the order shallhave effect as an order to produce the material,or to give access to it, in a form in which it isvisible and legible and in which it can be takenaway.

(6) The order—

(a) in so far as it may empower amember of the Garda Sıochana totake away a document or to begiven access to it, shall authorisehim or her to make a copy of it andto take the copy away,

(b) shall not confer any right to pro-duction of, or access to, any materialsubject to legal privilege, and

(c) shall have effect notwithstanding anyother obligation as to secrecy orother restriction on disclosure ofinformation imposed by statute orotherwise.

15

Pt.3 S.18

Pt.3 S.18

16


(7) Any material taken away by a member ofthe Garda Sıochana under this section may beretained by him or her for use as evidence inany proceedings.

(8) A judge of the District Court may vary ordischarge an order under this section on theapplication of any person to whom an orderunder this section relates or a member of theGarda Sıochana.

(9) A person who without reasonable excusefails or refuses to comply with any requirementof an order under this section is guilty of anoffence and liable—

(a) on summary conviction, to a fine notexceeding \3,000 or to imprison-ment for a term not exceeding 12months or to both, or

(b) on conviction on indictment, to a fineor to imprisonment for a term notexceeding 5 years or to both.

Disclosureprejudicial tomakingavailable ofmaterial undersection 14A.

14B.—(1) A person who, knowing or sus-pecting that an application is to be made, or hasbeen made, under section 14A for an order inrelation to making available any particularmaterial or material of a particular description,makes any disclosure which is likely to prejudicethe making available of the material in accord-ance with the order is guilty of an offence.

(2) In proceedings against a person for anoffence under this section it is a defence to provethat the person—

(a) did not know or suspect that the dis-closure to which the proceedingsrelate was likely to prejudice themaking available of the materialconcerned, or

(b) had lawful authority or reasonableexcuse for making the disclosure.

(3) A person guilty of an offence under thissection is liable—



Property heldin trust.

14C.—(1) For the purposes of an investigationinto whether a person has benefited from assetsor proceeds deriving from criminal conduct or isin receipt of or controls such assets or proceedsthe Chief Bureau Officer or an authorised officermay apply to a judge of the High Court for an


order under this section in relation to obtaininginformation regarding any trust in which the per-son may have an interest or with which he or shemay be otherwise connected.

(2) On such an application the judge, ifsatisfied—

(a) that there are reasonable grounds forsuspecting that a person—

(i) has benefited from assets or pro-ceeds deriving from criminalconduct or is in receipt of orcontrols such assets or pro-ceeds, and

(ii) has some interest in or otherconnection with the trust,

(b) that the information concerned isrequired for the purposes of such aninvestigation, and

(c) that there are reasonable grounds forbelieving that it is in the publicinterest that the information shouldbe disclosed for the purposes of theinvestigation, having regard to thebenefit likely to accrue to the inves-tigation and any other relevant cir-cumstances,

may order the trustees of the trust and any otherpersons (including the suspected person) to dis-close to the Chief Bureau Officer or an author-ised officer such information as he or she mayrequire in relation to the trust, including theidentity of the settlor and any or all of the trus-tees and beneficiaries.

(3) An order under this section—

(a) shall not confer any right to pro-duction of, or access to, any infor-mation subject to legal privilege,and

(b) shall have effect notwithstanding anyother obligation as to secrecy orother restriction on disclosure ofinformation imposed by statute orotherwise.

(4) A judge of the High Court may vary or dis-charge an order under this section on the appli-cation of any person to whom it relates or amember of the Garda Sıochana.

(5) A trustee or other person who withoutreasonable excuse fails or refuses to comply withan order under this section or gives informationwhich is false or misleading is guilty of an offenceand liable—


17

Pt.3 S.18

Pt.3 S.18

Amendment ofTitle to Part VI ofAct of 1994.

Amendment ofsection 38 (seizureand detention) ofAct of 1994.

18



(6) Any information given by a person in com-pliance with an order under this section is notadmissible in evidence in any criminal pro-ceedings against the person or his or her spouse,except in any proceedings for an offence undersubsection (5).

(7) In this section ‘information’ includes—

(a) a document or record, and

(b) information in non-legible form.”.

PART 4


19.—The Title to Part VI of the Act of 1994 is hereby amendedby the substitution of “SEARCH FOR, SEIZURE AND DIS-POSAL OF MONEY GAINED FROM, OR FOR USE IN, CRIMI-NAL CONDUCT” for “DRUG TRAFFICKING MONEYIMPORTED OR EXPORTED IN CASH”.

20.—Section 38 of the Act of 1994 is hereby amended—

(a) by the substitution of the following subsections for subsec-tion (1):

“(1) A member of the Garda Sıochana or an officer ofcustoms and excise may search a person if the member orofficer has reasonable grounds for suspecting that—

(a) the person is importing or exporting, or intendsor is about to import or export, an amount ofcash which is not less than the prescribed sum,and

(b) the cash directly or indirectly represents the pro-ceeds of crime or is intended by any person foruse in connection with any criminal conduct.

(1A) A member of the Garda Sıochana or an officer ofthe Revenue Commissioners may seize and in accordancewith this section detain any cash (including cash foundduring 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 suspectingthat it directly or indirectly represents the pro-ceeds of crime or is intended by any person foruse in any criminal conduct.”,

and


(b) by the insertion of the following subsection after subsec-tion (3):

“(3A) Where an application is made under section39(1) for an order for the forfeiture of cash detained underthis section, the cash shall, notwithstanding subsection (3),continue to be so detained until the application is finallydetermined.”.

21.—Section 39(1) of Act 1994 is hereby amended by the substi-tution of “the proceeds of crime or is intended by any person for usein connection with any criminal conduct” for “any person’s proceedsof, or is intended by any person for use in, drug trafficking”.

22.—Section 43 of the Act of 1994 is hereby amended by the sub-stitution 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, consti-tutes an offence under the law of the state or terri-tory concerned and would constitute an offence ormore than one offence if it occurred within the State;

‘exported’, in relation to any cash, includes its being brought toany place in the State for the purpose of being exported;

‘proceeds of crime’ has the meaning given to that expression bysection 1(1) (as amended by section 3 of the Proceeds of Crime(Amendment) Act 2005) of the Proceeds of Crime Act 1996.”.

PART 5


23.—The Act of 2001 is hereby amended by the insertion of thefollowing sections after section 2:

“Seizure ofsuspectedbribe.

2A.—(1) A member of the Garda Sıochanamay seize any gift or consideration which themember suspects to be a gift or considerationwithin the meaning of section 1 of the Preventionof Corruption Act 1906, as amended by section 2of this Act.

(2) The seized property may not be detainedfor more than 48 hours unless its detention for afurther period is authorised by order of a judgeof the Circuit Court.

(3) Such an order—

19

Pt.4 S.20

Amendment ofsection 39(forfeiture of seizedcash) of Act of1994.

Amendment ofsection 43(interpretation ofPart VI) of Act of1994.

New sections 2A,2B and 2C in Actof 2001.

Pt.5 S.23

20


(a) shall not be made unless the judge issatisfied—

(i) that there are reasonablegrounds for suspecting that theseized property is a gift or con-sideration within the meaningof the said section 1,

(ii) that either its origin or deri-vation is being further investi-gated or consideration is beinggiven to instituting pro-ceedings, whether in the Stateor elsewhere, against a personfor an offence with which thegift or consideration is connec-ted, and

(iii) that it is accordingly necessarythat the property be detainedfor a further period,

and

(b) shall authorise the detention of theseized property for a further speci-fied period or periods, notexceeding 3 months in any case or 2years in aggregate.

(4) An application for an order under subsec-tion (3) of this section may be made by a memberof the Garda Sıochana.

(5) Property detained under this section shallcontinue to be so detained until the final determi-nation of—

(a) any proceedings, whether in the Stateor elsewhere, against any person foran offence with which the propertyis connected, or

(b) any application under section 2B forits forfeiture,

whichever later occurs.

(6) Subject to subsection (5), a judge of theCircuit Court may cancel an order under subsec-tion (3) of this section if satisfied, on applicationby the person from whom the property was seizedor any other person, that its further detention isno longer justified.

Forfeiture ofbribe.

2B.—(1) A judge of the Circuit Court mayorder any gift or consideration which is detainedunder section 2A of this Act to be forfeited ifsatisfied, on application made by or on behalf ofthe Director of Public Prosecutions, that it is agift or consideration referred to in section 1 ofthe Prevention of Corruption Act 1906, asamended by section 2 of this Act.


(2) An order may be made under this sectionwhether or not proceedings are brought againstany person for an offence with which the gift orconsideration in question is connected.

(3) The standard of proof in proceedings underthis section is that applicable in civil proceedings.

Application ofsections 40, 41,42 and 45 ofAct of 1994 tocertainproperty.

2C.—Sections 40 (appeal against forfeitureorder), 41 (interest on cash detained), 42(procedure) and 45 (disposal of forfeited cash) ofthe Act of 1994 shall apply in relation to cash and,as appropriate, to any other gift or considerationdetained under section 2A, or forfeited undersection 2B, of this Act as they apply in relationto cash detained or forfeited under section 38 or39 of that Act.”.

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Pt.5 S.23

arrangement of sections preliminary and general … · arrangement of sections part 1 preliminary...

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