Joint Committee on Justice debate -
Tuesday, 16 Apr 2024

Pre-legislative Scrutiny of the Proceeds of Crime (Amendment) Bill 2024: Discussion

An Cathaoirleach

Good afternoon to the members and witnesses. We have not received any apologies for today's hearing. I will read the usual housekeeping notes. I ask everybody to turn off their mobile phones or put them on airplane mode ideally in order that they do not interfere with the sound recordings.

The purpose of our meeting is to consider pre-legislative scrutiny of the general scheme of the proceeds of crime (amendment) Bill 2024. We have a number of stakeholders before us today and I welcome them all to our meeting. I welcome the following witnesses: Mr. Barry Murphy, assistant principal officer, and Mr. Brendan O'Hara, assistant principal officer, from the Office of the Revenue Commissioners; Detective Chief Superintendent Michael Gubbins, chief bureau officer, and Mr. Kevin McMeel, bureau legal officer, from the Criminal Assets Bureau, CAB; Mr. Brendan Bruen, principal officer at the Department of Justice; Assistant Commissioner Justin Kelly and Detective Superintendent Steven Meighan from the organised and serious crime unit of An Garda Síochána; and Mr. Sean Guerin SC and Ms Kate Egan BL from The Bar of Ireland. I thank them all for giving of their time and attention today and also for their submissions received in advance.

Before I get on to the main business of the meeting, I advise of the following matters relating to parliamentary privilege and practice. Witnesses and members are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or to otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. If their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative they comply with any such direction if given.

The format of our meeting is that we will take opening statements from each organisation. Some of the organisations have more than one witness but we will take one speaker from each for the opening statements. The opening statements are quite short, at three minutes per organisation, but we find that this format allows for a wider deliberation and discussion as the meeting goes on. We will then use a rota system and the committee members will indicate to me when they wish to speak. There is a six-minute speaking slot for each committee member to put their questions and receive answers from witnesses. As always, we have a time cut-off for the meeting but we will not worry about that just yet as we are only starting. However, I may move things on at certain times if we need to. If we have clarity on a point and it is being laboured, we may move on to the next point to try to keep the meeting moving forward and focused.

I now invite our witnesses to each deliver an opening statement from their respective organisations. We will start with the Office of the Revenue Commissioners, on behalf of which Mr. Murphy will make an opening statement.

Mr. Barry Murphy

I thank the committee for the opportunity to make an opening statement. I am attached to Revenue's investigation, prosecution and frontier management division. I am joined by my colleague, Mr. Brendan O’Hara, who is an assistant principal officer in Revenue’s business taxes policy and legislation division. I understand the purpose of this meeting is to discuss the general scheme of the proceeds of crime (amendment) Bill 2024. In its submission to the committee on 28 February last, Revenue outlined that it did not have any comment on the content of the general scheme itself. However, in its submission, it asked that the committee consider two minor technical amendments to existing definitions referred to in Parts 2 and 3 of the general scheme. These proposed amendments seek to harmonise the relevant definitions with EU regulations and the Tax Acts respectively and would further enhance cross-agency operational efficiencies. Mr. O'Hara and I are happy to discuss these requests and to answer any questions the committee may have regarding same.

An Cathaoirleach

I thank Mr. Murphy for his very concise remarks. He came in well under his time.

I now invite Detective Chief Superintendent Michael Gubbins of the Criminal Assets Bureau to make his opening remarks.

Mr. Michael Gubbins

On behalf of the Criminal Assets Bureau, we welcome the opportunity to address the Oireachtas Joint Committee on Justice on the proposed proceeds of crime (amendment) Bill 2024. First, we wish to acknowledge the work of the Department of Justice, the Office of the Attorney General and other key stakeholders, including the Revenue Commissioners and the Garda Síochána, in bringing the Bill to this stage. I will open by saying that the bureau is firmly supportive of the Bill, which we believe will enhance greatly the effectiveness of the Proceeds of Crime Acts and address some of the legal infirmities identified in the Criminal Assets Bureau Acts 1996 and 2005. In particular, the bureau believes the proposed changes under heads 4, 5 and 8 represent sensible, measured and significant improvements to the proceeds of crime framework under which the bureau has operated for the past 27 years.

Head 4 provides for the introduction of a statutory framework for a bureau officer to restrain transactions for the purpose of carrying out a proceeds of crime investigation. The proposed head will introduce an important bespoke tool for proceeds of crime investigators to freeze transactions, typically financial accounts, for the purpose of allowing the necessary investigations to take place. Given the increasingly complex, financial and often multi-jurisdictional nature of proceeds of crime investigations, the bureau submits that the proposal would be significantly more effective if the proposed maximum duration of such restraint orders were to be increased from the proposed 28 days to 56 days. This would ensure a more efficient use of the time of officers and courts.

Head 5 proposes reducing from seven to two years the statutory time period before which an asset determined to be the proceeds of crime can be vested in the State or injured party. The reduction of this time period, together with the restriction on the grounds on which a disposal order can be opposed, will, in the view of the bureau, reduce both duration and cost of such applications. This will have the effect of greatly improving the effectiveness of the overall scheme.

Head 8 proposes that a receiver be appointed solely for the purpose of depriving a person of enjoyment of the proceeds of crime. To date, the courts have exercised their discretion to appoint a receiver over the proceeds of crime in cases in which the bureau has demonstrated there is a risk. It is the bureau’s view that the proposal will reduce greatly the anomalous situation whereby persons might continue to enjoy the benefit of property for up to seven years after the High Court has determined it to be the proceeds of crime. In the view of the bureau, the proposal is more aligned with the legislative intent and overall spirit of the proceeds of crime framework to deny and deprive persons of such benefits.

In addition to the foregoing, the Bill proposes a number of heads which will further improve the efficacy of the proceeds of crime scheme and amend some of the practical frailties and anomalies identified in the Criminal Assets Bureau Acts. We believe that by adopting the Bill, it will create a more effective Criminal Assets Bureau, improve efficiencies in the non-conviction based forfeiture scheme under which it operates, facilitate better exchange of information and, in the case of the extension of anonymity provisions, safeguard the security of former bureau officers and members of staff of the bureau. All of these measures will have the effect of increasing public confidence in the justice system, the bureau and, by extension, the rule of law.

In conclusion, we are grateful for the opportunity to contribute to this committee hearing and we welcome any questions members may have on foot of our submission, our experience in the operation of the proceeds of crime scheme currently and the bureau’s views on the impact the Bill is likely to have in that regard.

An Cathaoirleach

I thank Mr. Gubbins. I now call on Mr. Brendan Bruen from the Department of Justice.

Mr. Brendan Bruen

I thank the committee and the Cathaoirleach for the opportunity to attend and contribute to the deliberations on the scheme of the Bill. The Department has benefited significantly from stakeholder input in developing the scheme and the Department and I look forward to the discussion today and to considering any input arising from the committee’s scrutiny.

At the outset, I particularly acknowledge the exceptional work of the Criminal Assets Bureau. Since its inception, it has been at the forefront of disrupting the activities of the organised criminal groups which have caused such damage to our society. Between 1996 and 2022, CAB has recovered more than €210 million.

That targeting the proceeds of crime is a valuable and vital response to economic and organised crime is now hardly controversial. Across Europe and beyond, there is a growing realisation and acceptance that pursuing individuals for individual criminal offences can only be a part of the response to such conduct. Another necessary part of that response is targeting the illicit assets that are generated by that conduct and which have no demonstrable lawful source. That realisation is, of course, one which Ireland reached a long time ago with the Proceeds of Crime Act 1996, and indeed before that, and the Irish model has rightly been a focus of international attention as this approach has been more widely adopted.

Civil confiscation is not the trial of a criminal offence, but rather a challenge to the provenance of the asset. It operates on the premise that the ownership of the asset is tainted from the moment it is proceeds of criminal conduct. The trafficker cannot assert property rights against the State over the drugs he or she is trafficking, nor can the trafficker assert property rights over the proceeds of the sale of those drugs. These challenges to ownership and possession properly operate in civil processes and are subject to civil standards of proof.

When introduced, the Proceeds of Crime Act was a new departure. We now have the benefit of approximately 30 years of practical experience in its operation and it has been thoroughly tested in Irish and European courts. The reforms proposed in this scheme reflect the operational lessons learned and are part of a process of ongoing and continual improvement. Given the time available, I do not propose to speak to every aspect of the scheme but I will highlight some features. I am, of course, happy to address any points the committee wishes to examine in greater detail.

The most prominent feature is the reduction in the time that must elapse, that is, from seven years to two years, between the determination that the property is the proceeds of a crime and an order being made for its disposal for the benefit of the Exchequer. A determination the property is the proceeds of crime is made at section 3 of the Bill and this, as has been found by the Supreme Court, constitutes the final hearing of the question of whether or not that asset is the proceeds of crime. The purpose of the period of time provided after that section 3 order, and before the disposal order, has been to ensure that anyone with a claim to the property, including the respondent, may litigate that. Under these circumstances, the view underpinning the scheme is that the seven-year period does not actually function to protect legitimate rights and should be significantly shortened.

There are and remain extensive procedural protections in place and the amendment of section 16, which is proposed in head 9, will add a further balance in the shape of the potential for post-disposal compensation. A separate amendment is proposed to avoid attempts to re-litigate the question of whether property is indeed the proceeds of crime at the section 4 disposal stage. As I have noted, this question is properly dealt with at section 3. Head 8 provides the automatic appointment of a receiver over property, to both protect the property and ensure that the owner is deprived of the benefit of it once it has been finally determined that it is proceeds.

The scheme further provides: in head 3, for the judicial extension of the time property may be seized by the District Court to allow for further investigation and the preparation of an application to the High Court; in head 4, for the restraint of services and transactions where they relate to the proceeds of crime; and in head 11, for the enhanced information exchange provisions in respect of both domestic and international co-operation. I look forward to the committee's consideration of the scheme.

An Cathaoirleach

I thank Mr. Bruen. We will now hear from Assistant Commissioner Mr. Justin Kelly.

Mr. Justin Kelly

Good afternoon. I thank the Cathaoirleach and members of the committee for the invitation to attend today's hearing and for providing time to An Garda Síochána to put forward its views on the Proceeds of Crime (Amendment) Bill 2024. An Garda Síochána is supportive of this legislation and welcomes the proposal to introduce these amendments. If adopted, this will complement An Garda Síochana's efforts to tackle organised and serious crime. It is our view that this Bill will streamline the operation of the Criminal Assets Bureau, CAB, and An Garda Síochána is particularly supportive of the following aspects of the Bill: the reduction in waiting times for disposal orders; and the important protections provided to former CAB officers.

The Criminal Assets Bureau, as a separate statutory agency, has made its own submission to this committee and An Garda Síochána supports its submission in its entirety. Many of the proposed amendments are operational in nature and are therefore best addressed by CAB itself. In support of CAB, An Garda Síochána wishes to raise some matters with the committee as it works to process this valuable legislation.

We support the proposed amendment in head 3, which relates to section 1(a) of the Proceeds of Crime Act 1996. In 2016, section 1(a) became a welcome addition to the tools available to CAB. It allowed bureau officers acting in the course of their duties to seize and detain property that was suspected to be the proceeds of crime for a 24-hour period. It also provided for the chief bureau officer to authorise the continued detention for one period of 21 days in appropriate circumstances. The addition proposed by this Bill will enable CAB to make ex parte applications to the District Court seeking 28-day extensions in the case of detention orders. This provides a valuable and practical power to CAB. However, we share CAB's concern around the practicalities associated with requiring the chief bureau officer to attend the District Court for each application. It would not be feasible to require the bureau's most senior officer, who is a detective chief superintendent, to pursue each of these applications in court in person. There is a provision in respect of An Garda Síochána in other legislation which avoids the requirement for senior officers to perform this function. For example, under section 17 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021, any member of An Garda Síochána can make applications to the District Court. In our experience, it is best practice to have the relevant investigator in court to make such applications. That way, he or she can address any specific questions the court may have.

Separately, An Garda Síochána also welcomes the provision of a stand-alone freezing power to CAB, proposed under head 4 paragraph 1(a) of the Bill. However, in our experience of making applications under similar legislation, 28 days is too short of a timeframe to carry out the necessary inquiries. We support the suggestion that this be increased to 56 days. This would allow for a more efficient use of CAB's time and resourcing, and that of the Judiciary and Courts Service.

In respect of head 10, this is a practical measure that amends section 8(6)(a) of the Criminal Assets Bureau Act 1996. By doing so, it will entitle CAB officers, who are not members of An Garda Síochána, to be present during Garda interviews conducted under section 50 of the Criminal Justice Act 2007. The presence of such persons with specialist skills during the interviews of suspects will be advantageous, particularly in areas that are technical in nature. This will be a positive development from our perspective and it will bring section 50 in line with other detention provisions.

Similarly, head 11 is welcomed as another practical and necessary provision. Co-operation with national and international police services and agencies is a crucial element of modern policing, particularly when combating criminal networks that are transnational in nature. For example, in this context, An Garda Síochána is the designated point of contact for various international organisations such as Europol and Interpol. It is noted that proposed amendments under head 10 would permit the exchange of information between relevant national agencies, including the DPP and law enforcement agencies in other jurisdictions.

To conclude, as we have said in our written submission, the majority of criminal activity is driven by greed and the quest for financial gain. One of the most crucial elements of any strategy to combat organised crime is to deprive criminals of their ill-gotten gains. CAB and legislation such as the Proceeds of Crime Acts provide important mechanisms to protect our communities and keep people safe.

Finally, I would again like to thank the committee for its invitation to speak here today on behalf of An Garda Síochána. I am happy to discuss any questions members may have in relation to this submission and our work in this area.

An Cathaoirleach

I thank the assistant commissioner. I call Mr. Guerin from the Bar of Ireland.

Mr. Seán Guerin

The Bar of Ireland has furnished the committee with a written submission. A short presentation in relation to that will be made by my colleague, Ms Kate Egan.

Ms Kate Egan

Good afternoon. I thank the Cathaoirleach and members of the committee for giving us the opportunity to make observations of the heads under the draft general scheme. As Mr. Guerin said, we have already filed written submissions in more detail but we propose to address the committee in respect of two particular issues on the subject of judicial authorisation.

First, with respect to head 3 of the general draft scheme, this provision, as the committee will know, enables the bureau to obtain a short-term detention order in the District Court of a property seized during a search. The freezing order can be extended for another short-term period to enable the bureau to continue any investigation into whether the property is the proceeds of crime and whether it intends to make an application pursuant to section 2 or section 3 of the existing 1996 Act. The committee will be aware that they are the procedures under which an application is made to court for an interim or interlocutory order. The entire period of the proposed freezing order must not exceed 90 days and the court order provided for is by way of extension to a detention order which would have been previously made by the chief bureau officer, pursuant to section 1(2)(a) of the Proceeds of Crime Act 1996, for a period not exceeding 21 days, following, of course, an initial order for no more than 24 hours made by the individual bureau officer.

The Bar of Ireland is of the view that some thought might be given as to whether the invocation of the jurisdiction of the court should in fact occur earlier than the 22 days after the seizure of the property. Orders of this nature constitute an interference of property rights and should in principle therefore be judicially authorised. It is acknowledged that there may be a necessity for urgent orders of this nature to be made before judicial authorisation can be reasonably be obtained.

The duration of such an order is a different matter, however. There is an argument to be made in principle that the proper duration of the non-judicial orders ought not to exceed the period of time necessary to obtain judicial authorisation. Section 17 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and the proposed head 4 of the general scheme, which bears some similarity of purpose with this head, both provide for a Garda power amounting to an interference of property rights not exceeding seven days. Subject to my observations in respect of head 4, it is not apparent that jurisdiction exists for there to be a significantly longer period provided for in head 3.

Head 4 deals with the subject of restraint orders. It provides for a power to enable a bureau officer who is a member of an Garda Síochána of at least superintendent rank to issue an order and the court to extend such an order restraining service or transactions relating to properties suspected on reasonable grounds to be the proceeds of crime. It is obviously modelled on section 17 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, which provides for a similar power in respect of services or transactions suspected of comprising or assisting in money laundering or terrorist financing. Again, the necessity for a period of restraint is obvious, as is a possible necessity for an order in advance of a court application, but it is not obvious that a seven-day period of restraint without an application to court is either necessary or appropriate. Since subheads 12 and 13 clearly contemplate the possibility of an application to court by a person affected, there may in principle be good reason why a positive application should not be made by the bureau. Orders of this nature represent an interference with the employment of property rights and therefore should always be subject to judicial authorisation, save for cases of real urgency.

As stated at the outset, our submission also makes observations on matters related to the amendment of section 4, the appointment of a receiver and the sharing of information. We will be happy to address any questions members of the committee may have arising from all aspects of our submission in due course.

An Cathaoirleach

I thank Ms Egan and all of our witnesses for their remarks. I now invite members of the committee to take up their slots in the order in which they indicated. I call Deputy Daly.

Deputy Pa Daly

I thank the witnesses for coming in. CAB has been going since 1996 and was very innovative at that time. What are the main challenges that the organisation is currently facing? Is there any particular challenge obstructing its work or contrary to the achievement of its desired results?

Mr. Kevin McMeel

I might take that question. The real challenge, and some of this is addressed in the proposed Bill, is that the world of crime has become far more international since 1996. At that time, we had very far-reaching legislation which our colleagues in the UK followed six years later, a situation that is quite unusual for Irish legislation. It was deemed to be effective. What we see now is that the criminals we are targeting tend to move abroad, particularly those who are at a high level. One of the downsides to having such far-reaching and pioneering legislation is that other jurisdictions tend not to recognise our orders. There are considerable challenges in trying to effect outside of this jurisdiction orders that are obtained in this jurisdiction. That is one of the primary challenges we have. The world has moved on since 1996. With the advent of cryptocurrency and similar technological advances, the investigating and seizing of assets, particularly virtual assets, is especially challenging. Although the Bill does not necessarily address those specific aspects, some of the proposed amendments will assist in investigating all types of proceeds of crime, including virtual currencies. Those are the two primary areas of challenge. The world has moved on and it is incumbent on us in the Criminal Assets Bureau to move with the times. Hopefully this Bill goes some of the way towards addressing those concerns.

Deputy Pa Daly

If the Criminal Assets Bureau was seeking additional resources or powers what would they be, specifically in the transnational area?

Mr. Kevin McMeel

There are frameworks in place and various international organisations including the FATF. In addition, the European Union has made inroads in trying to get buy-in from other jurisdictions in terms of recognising the orders and the types of orders that we get in those jurisdictions. I know there was a big drive from FATF in recent years, particularly last year, to get other jurisdictions to embrace this civil non-conviction based forfeiture model. The EU has issued recent directives in terms of recognition of orders on a European level. This includes non-conviction based forfeiture orders such as those we operate. The times are moving forward but, unfortunately, that is not something that anyone here can address. Trying to change the minds of lawmakers in other jurisdictions is the primary concern.

Deputy Pa Daly

Internally, what more could be done?

Mr. Kevin McMeel

There is a tranche of other heads. This is the first tranche of amendments on foot of the discussions and review of the proceeds of crime legislation. A number of other proposals are in train in terms of amending the proceeds of crime Acts. Mr. Bruen on behalf of the Department might be able to elaborate on what is being proposed.

Deputy Pa Daly

The witnesses are aware that there are other issues to be addressed. Are they likely to come before the current 33rd Dáil?

Mr. Brendan Bruen

I can speak to a number of them. As Mr. McMeel mentioned, the international co-operation piece is vital. The EU recently adopted the asset recovery and confiscation directive. That directive, which is very heavily influenced by Irish legislation, adopted a model of confiscation of unexplained wealth for the first time on an EU-wide basis. That is likely to significantly change the attitudes of other jurisdictions to international co-operation and enforcement of orders. For the first time, all European countries will have a model that is much closer to a CAB model. It is not necessarily a civil model or a criminal model. There is space for jurisdictions to go at it in different ways. It will significantly improve the familiarity of those jurisdictions in terms of how they implement that.

One of the biggest questions that we did not address in the scheme was how to improve the international co-operation position. We did not address it because we wanted to see what would happen with asset recovery and confiscation. There is work to be done. On foot of the directive to which I referred, negotiations are likely to start at Council of Europe level towards an additional protocol to the Warsaw Convention 2005, again to facilitate international co-operation. Insofar as the directive was adopted on 12 April, it is hot off the presses. We are tracking those negotiations and seeing what can be done with it.

There are some other areas of work which cross over not just with CAB but with other work, particularly in the police powers area, in terms of attendance at interviews, handling legal professional privilege and where such privilege is asserted. We have been in discussion with Revenue colleagues on the specific issue of the publication of tax defaulters and where that currently applies with Revenue by default but does not necessarily apply by default in the case of CAB. We are also working through a number of slightly less significant areas in that regard.

This scheme is an incremental improvement identifying particular practical pain points and trying to address each one as it goes. We have the recognition that the international co-operation piece is vital.

An Cathaoirleach

I thank Mr. Bruen and Deputy Daly. We might come back to Deputy Daly later on if there is time.

Senator Lynn Ruane

I thank the Chair. I hope we get a second round because the Department also submitted items on the community safety innovation fund, which I will address separately if we come back around, in terms of its criteria, the intention and budget and so on. For this round, however, I might stick specifically to the heads of Bill. I am obviously trying to understand receiverships and liquidation all at once, while my social policy context head is mixing with a different area at the moment. Many of my questions potentially could be answered by CAB or the Bar. Some of the questions are more about seeking clarity of understanding the implications of some of the heads. I will go through all the questions first before a response in case our witnesses want to take note, because there will be a few, if I can get through them.

On head 3, which provides the extension of time for the seizure and detention of property, does this head encroach on a respondent's property rights in any sense? I refer, for example, to the right to legal representation or his or her access to it, given the shortage or barristers, time periods, courts, legal aid and so on. What safeguards would exist to ensure that a respondent has adequate time to oppose the conditions of a detention if they so wish? I acknowledge it is stated notice shall be given but I mean safeguards beyond that kind of provision.

When I look at head 4, I think specifically of businesses or properties which have affected third parties, such as people who may have nothing to do with criminal activity or are unaware of it, whether that be an employee or a tenant. I wonder whether this provision specifically creates a potential danger for such persons in respect of possible retribution or loss of employment, essentially allowing an individual to become a scapegoat in a situation that is not down to him or her. Does the application to the District Court provide adequate practical relief in that regard, especially if the property is under receivership? I know this may interact somewhat with head 7, as it may disallow the respondent from carrying on the business, which may consequently affect the person subject to the order, so there probably are two parts in each of those which interact somewhat.

On head 5, a hypothetical scenario for me was of a potential property that could be used to benefit the community, again unawares. I mean a facility or capital within a community that is used to benefit the community in a particular way but which is now to be transferred due to its complicity in criminal activity. Would organisations working in the community be in a position to claim ownership when we look at head 5?

On head 8, my concern is that a receiver does not owe a duty of care to a company in the same way a liquidator might and they exercise more discretion. I am wondering if it makes more sense in this instance to amend the Companies Act 2014 to include a provision on the proceeds of crime. I am thinking of the third parties or everyone else who can be affected by an application or something going into receivership.

On head 10, section 50 related to specific offences. Only subsection 1 specifies the actual offences and the rest of it relates to detention itself. I wonder about the provisions on extending time in detention and recording, etc. It seems unnecessary to me - and I am to open to comment on that - to amend the Act with a blanket reference to section 50, rather than the head, which could specify section 50.

On head 11, which provides provisions on information exchange, I refer to its purpose in respect of GDPR. What is the purpose of the sharing of information when it comes to CAB with An Garda Síochána or the Garda Síochána Ombudsman Commission? Is it related to crime itself? What type of data is it? Is it full access to data? That would obviously have to adhere to GDPR in respect of its purpose or public interest and so on.

Going back briefly to head 9 and compensation, who exactly are seen as being potential people who may have to access compensation when it comes to the proceeds of crime? It could be extremely wide but I also am thinking of family members who often probably may not get a lot of empathy when something has been taken through the proceeds of crime. I see can people ending up in homeless and so on, however, through no fault of their of their own or through not realising that it was the proceeds of crime that had paid for where they live or the house they are in. Who is actually considered when we think of compensation within that head?

An Cathaoirleach

There is not a whole lot of time, actually there is technically no time for responses, but I will take a couple because we may do a second round. I will take a couple of brief responses. Does Mr. McMeel want to respond?

Mr. Kevin McMeel

I am happy to address some of that and perhaps a lot of the concerns the Senator has could be dealt with in one response. The Senator's concerns for the most part centre around third parties, that is, people who seem to be affected by the orders and may be in danger, vulnerable or losing properties as a result of the orders being made. I think her first concern was about access to justice and ensuring that there were safeguards in that respect. There are two provisions within the Act that allow people to access legal representation. The first is in section 6 of the Act, which allows people to apply to the court for moneys out of the assets being seized, the subject matter of the application, and the courts may or may not grant that order.

Since 1998, two years after the enactment, they brought in CAB ad hoc legal aid scheme, which allows people to apply for legal aid and the courts look at that application and assess it. Often people do not deserve legal aid and are not provided with legal aid but often they are. The courts will look at their financial circumstances and will allow legal aid in that instance, particularly in circumstances where the family home is in jeopardy, and that seems to be the way the courts rule in relation to legal aid. There is a provision of legal aid and that is on the basis of equality of arms, so whatever legal counsel the bureau has, they will be provided with a legal counsel of the same level. If the bureau is provided with, or has a quantity surveyor or a forensic accountant, it is for them to apply for similar expertise. There is provision there for people to be able to represent themselves and gain the expertise that they require to defend the case.

The Senator mentioned receiverships and how they affect the property and the individuals who might be residing in that property, be they the respondents to the application or potentially family members. The courts will look at it so that they should be put in no better position than somebody who has failed to pay his or her mortgage. If somebody has funded the renovations or the purchase of his or her house through the sale of cocaine, for example, he or she should not be in a better position than people who simply cannot afford to pay their mortgage. The courts regularly dispossess people of their properties on account of them simply being unable to pay their mortgages and therefore, the way the courts look at it is that the person who has got that house, car or bank account on account of his or her criminal activity should not be in any better place. In that circumstance, they will make an order pursuant to section 3 and then they will appoint a receiver. Generally, as it is the person who holds my office who is appointed receiver in respect of it, I am quite well placed to discuss how that works. Generally, the courts will either appoint me as a receiver to manage the property - it might be to manage it with a view to preserving its value - or, more often than not, it will be to take possession of the property.

That could be land and buildings or a residential property but it could be a Ferrari as well. Generally, it is to sell that property and to hold onto the net proceeds of that sale, pending the final order, which is the section 4 order or the disposal order, where that moneys are generally returned to the Exchequer. I know there is the-----

Senator Lynn Ruane

In the business, what would your responsibilities be to employees?

Mr. Kevin McMeel

I have been in the position for five years and have been working in the Criminal Assets Bureau since 2012. I have not seen a receiver appointed to the business, only to the assets of the business. It happens very infrequently and in fact I am unsure if it has ever happened. I think it has happened on one occasion prior to my arrival in 2012. If there is a viable business, the courts will assess whether that business can continue. Sometimes, the business could be a facade, that is, a method of generating or laundering money. In those circumstances, if that is evidence in the case-----

Senator Lynn Ruane

Not necessarily for the employees, say. So in terms of the employees' right to protection.

Mr. Kevin McMeel

It has not happened yet. Were I appointed as a receiver for a going concern, we would sell it as a going concern. If the business was genuinely making money, it would be in incumbent on me as receiver to sell the property, if the property is the business itself, to sell it for as much money as can be recovered in the open market.

An Cathaoirleach

I thank Mr. McMeel. Before moving on to the next member, I have a follow-up question, as is the Chair's prerogative. When Mr. McMeel talks about his function as a receiver in that context, does that have the same rights, responsibilities and obligations a receiver would normally have in any commercial undertaking where a receiver is appointed in lieu of debt, etc.? Is it the same? There is certain sort of housekeeping that goes with that where a receiver is not necessarily obliged to choose the optimal price but is obliged to dispose of the asset in an effective way. There is law around whether it should be a manager or just be a receiver. Is that all applicable to CAB's participation then as well?

Mr. Kevin McMeel

Yes. It is the very same as any other court-appointed receiver. A receiver on foot of a mortgage might have obligations on foot of that mortgage, which would be specific to that mortgage.

An Cathaoirleach

If there is a redemption possibility and so forth.

Mr. Kevin McMeel

Yes. They will not apply to me, obviously, but generally, the obligation is to sell the property for the best price reasonably available in the market today and to do-----

An Cathaoirleach

Is CAB under any obligation or is there a due diligence to make sure there is no connected party coming in by the back door to take the asset on again?

Mr. Kevin McMeel

We try to do our own due diligence in that regard. It is important from a reputation perspective that the bureau is not seen to be selling the properties back to the very criminals from whom we have taken it away. In other jurisdictions, they do not care about that. I know that is the case in Holland. They do not do any due diligence and their view is that if a criminal buys it again, they will just take it off them again. I suppose there is some merit to that view as well.

An Cathaoirleach

And the State is enriched every time. The State is getting some capital every time.

Mr. Kevin McMeel

Well each time the State is up, yes.

An Cathaoirleach

That is interesting, I thank Mr. McMeel. Senator Gallagher is next, to be followed by Deputy Ó Ríordáin.

Senator Barry Ward

If I may, may I make my contribution now as I must be elsewhere? I will be brief.

An Cathaoirleach

Senator Gallagher might facilitate that.

Senator Robbie Gallagher

Yes, work away.

Senator Barry Ward

Sorry, I am very grateful to Senator Gallagher. I have two very quick questions. The first is on the operation of section 4(8) of the Proceeds of Crime of Act 1996, that is, the non-disposal in the circumstances where it would be against the interests of justice. Can Mr. McMeel give me an idea of how often it happens or has it ever happened?

Mr. Kevin McMeel

Never, to my knowledge.

Senator Barry Ward

Is it an operative clause then or is it just window-dressing? Surely there are cases where there are properties - Senator Ruane mentioned one to me - where somebody was left in homelessness, for example. Notwithstanding the fact that the asset might be the proceeds of crime, is it surely unjust to put somebody out on the street who has nothing to do with that criminal activity?

Mr. Kevin McMeel

The position is that this section 4 stage only happens currently seven years after the determination that the asset is the proceeds of crime. If somebody is renting that property for the entirety of that seven years, at the risk of appearing callous, one would have assumed they would be on notice of the fact that property is to be sold eventually.

Senator Lynn Ruane

Old age parents.

Senator Barry Ward

To be honest with Mr. McMeel, it does appear callous.

Mr. Kevin McMeel

They will have seven years. Usually the property, they will be on notice. Are we talking about tenants?

Senator Barry Ward

Yes, local authority tenants, in fact. Well, they would not be any more but the property was acquired from -----

Senator Lynn Ruane

Originally, local authority.

Mr. Kevin McMeel

This is a specific example, is it?

Senator Barry Ward

Yes, without naming any individuals or anything like that. The person who was a subject of a CAB order had bought the property of his parents from the local authority and they were not allowed to stay there.

Mr. Kevin McMeel

To tell the Senator the truth, I am unaware of that. The provision is there and it is open to anybody to argue whether an injustice is to be caused on account of the order being made and one would assume that the High Court would interpret that-----

An Cathaoirleach

Just to remind members that the convention has been to avoid any scenario where the person may be identifiable when speaking about specifics. Perhaps we will keep it general.

Mr. Brendan Bruen

I was going to come in on the broader question as to whether that provision is important. It is a reflection on how CAB has done its work that it has not been a focus to this - it has been quite narrow, focused and proportionate. There is the potential in how the Proceeds of Crime Act is structured that an injustice could arguably arise, in that we have an all-predicate model, so every criminal offence can generate proceeds. It is entirely plausible that under certain circumstances, a criminal offence might be quite minor but the proceeds would be very significant and there might be a proportionality question arising from that. It has been the focus of this discussion on a European level, where they take very specific predicate offences and will only do it for this to defend proportionality. Both how CAB has conducted its business and that provision within the Act are quite important safeguards in situations where this may see greater use or use outside of very specific organised crimes.

Senator Barry Ward

On head 5(1), where the period is changing from seven years to potentially two, does CAB have any concerns about the constitutional aspect of that or the imposition on individual property rights?

Mr. Kevin McMeel

The answer is "No", we do not. There is advice to be given by the Attorney General on that but our view is that it is constitutionally sound. People would have an opportunity, certainly at the section 3 stage, to air whatever arguments or submissions that they want on the property not being the proceeds of crime. If they are unhappy with the order that is made, they can appeal that to the Court of Appeal and subsequently to the Supreme Court, if they are unhappy with the decision in the Court of Appeal or Supreme Court. There is a provision, for now it will be two years if the Bill is passed in its current form, that they can challenge pursuant to section 3(3) to have that section 3 order discharged or varied within that two-year period. Consequently, one would argue there is ample opportunity to vindicate their own property rights during that period.

Senator Barry Ward

I thank the Chair, I appreciate being let in there.

Senator Robbie Gallagher

I thank welcome the witnesses here this afternoon and thank them for their contributions. A few speakers have mentioned that the world is a changed place from when this legislation came in in 1996. I note that more than €200 million has been returned to the State's coffers which is a testament to the bureau's work and I compliment them on it. We have got to a point now whereby the legislation needs to catch up to where the world is at. Is that reflected in the contributions year on year, going back the last three or four years, of the amount of money CAB is returning to the Exchequer? For example, is the trend going down or is the trend steady? What is the trend if we go back the last three or four years?

Mr. Michael Gubbins

I have the statistics here. For the last five years under the proceeds of crime element, we have taken in €8.8 million. Under Revenue collected, we have taken €17.3 million and under the Department of Social Protection recoveries, we have taken in over €2 million in that period. The figures for 2023, 2022, 2021, 2020 and 2019 were €2.2 million, €2 million, €1.1 million, €1.8 million and €1.5 million, respectively. That is an average of about €1.7 million per year over that period.

In 2019 Revenue collected €2.2 million, in 2020 it collected €2.1 million, in 2021 the figure was €4 million, in 2022 it was €3.9 million and it was just over €5 million in 2023. Our recoveries under social protection were €324,000 in 2019, €317,000 in 2020, approximately €365,000 in 2021, €445,000 in 2022 and €639,000 in 2023. We can see there is a gradual increase. Sometimes we must allow for how long it takes cases to get through and how long it takes them to get before the courts. It does not necessarily mean that every case has the same value of assets. That is why it can fluctuate a little. Overall we can see that we probably have a high proportion of properties on our books. The value of these increases as we go along.

Senator Robbie Gallagher

I was wondering whether there was a trend due to the legislation lagging from where the real world was at, and whether that was reflected in the return year on year to the Exchequer. It does not appear that is the case.

Mr. Kevin McMeel

Not really. There are several points I would like to make. The figures returned to the Exchequer are the net figures. These are the figures we are able to recover from the sales. They are not the values that it cost the criminal. There is a well-documented case of a property that we secured in the Crumlin area. It was purchased for €250,000 and we estimate, based on expert evidence, that €750,000 worth of renovation was put into the property. The book value that cost the individual was €1 million but we will never be able to recover €1 million in selling the property. The property has a notoriety associated with it. It is slightly run down from the height when it was renovated. The figures we return to the Exchequer do not show the job that we are doing. The job we are doing is how much we deprive the criminal of the asset. If we deprive the criminal of a €1 million house, that is worth more than the value we return to the Exchequer. In that way the statistics can be slightly misleading.

After the initial stages there was a drop. In the first few years of CAB involvement, at the very start on its inception, large amounts of moneys were taken. I suppose what has happened is that the criminals have caught on to CAB being there. We rarely see circumstances where a drug dealer will purchase a mansion in an obvious location in this jurisdiction. Such houses are not being taken as frequently. It still happens but it does not happen as frequently as it did in 1996, 1997 or 1998. There has been a slight drop-off in this regard. I would argue, and I hope, that is disrupting criminals. They are not living where they want to live. They are being forced to live in jurisdictions other than the one in which they were born. If we are achieving that, then it is a disruption of the criminal lifestyle.

Senator Robbie Gallagher

From the point of view of CAB negotiating, perhaps "negotiating" is the wrong word to use, with a criminal to try to get a net result, taking into consideration time lapses, going to court and all the manpower involved in it, how often does CAB reach a settlement, if I can use that term, with an individual?

Mr. Kevin McMeel

We have the statistics. Since the inception of the bureau, pursuant to section 4, which is the adversarial method, we have recovered just over €14 million under the Proceeds of Crime Acts. In cases which have settled we have recovered well over €23 million. On this evidence we seem to settle more cases than we do not. The basis on which we settle cases is very straightforward usually. The most we are likely to give people in return for settling a case is a guarantee that we will not pursue them for the costs of the application. Generally they benefit from less publicity being attached to it. They will not have to pay their own barristers in cases where they are not legally aided. They will save themselves that cost.

We very seldom give anything back in terms of assets. In some instances people can show that whereas the asset which is the subject matter of the application is the proceeds of crime, a proportion of the moneys that went into that asset was from a legitimate source. Perhaps one family member was contributing through lawful employment. Generally what happens is that the court makes an order directing the sale of the property but it also directs me as receiver to return 11% of the net proceeds of sale, or whatever percentage corresponds with the legitimate income, to the party affected. Generally we settle on the basis of what we conceive to be the litigation risk and what we think the courts will make of the case.

As we can see from the statistics, people have come around to the idea of settling with the bureau. They recognise it is part of the law enforcement landscape. When they are caught and the case is put before them they can see the evidence and, more often than not, they see they will not win the case and, therefore, they settle.

Senator Robbie Gallagher

They smell the coffee.

Mr. Kevin McMeel

Yes, they smell the coffee.

Deputy Aodhán Ó Ríordáin

I thank the witnesses for their presentations. I apologise for being late. If anything I ask has already been spoken about, I apologise. I thank the witnesses very much for the work they do. In my political work I come across a lot of young people in various communities who are very taken with the glamour of the life of crime. It is very lucrative. People do not need many qualifications to enter into the parallel economy. If they feel they are not empowered or respected by gardaí, teachers, politicians or social workers and somebody gives them some power or empowerment, it is very easy for them to find themselves in that life. The witnesses are not necessarily here to speak about that but I have some questions on it.

The initial legislation was enacted in 1996. Will the witnesses give me some kind of sense of the scale we are dealing with now compared with what it was almost 30 years ago? Is it as big? Is it getting bigger? Has it levelled off? They may have already touched on this.

In certain communities the person involved might not have a big house. They might not flaunt it that much but elements of their lives show they are clearly benefiting from the proceeds of crime. There might be Spanish holidays, a slightly bigger car or a second property. I know there are resource issues but previously we used to speak about mini CABs, which would be something smaller and more pointed for a particular community. It can lead to frustration if somebody very much believes the person across the road or around the corner is benefiting from the drugs trade or whatever. It is a smaller type of glamorous lifestyle they are leading but it is a major irritant. It is not the big showy stuff but the smaller stuff.

My next question is for the Bar Council. Not that anybody is likely to take a constitutional case against the legislation, and I do not think it would be a good move, but I want to ask about the constitutionality of this and whether it is something on which the witnesses have a view.

Mr. Michael Gubbins

With regard to what the Criminal Assets Bureau seized in 2024 and how it differs from 1996, to some extent very little has changed in that we have criminals who make money and wealth off the backs of people who have addiction and who are subject to violence and disruption in their lives and chaotic lifestyles. Much as in 1996, when people displayed their wealth and lived beyond their means and it was quite visible to the community, this still persists. A question I am often asked is what has changed. Very little has changed when we look at it at this level. What probably magnifies it a bit more today is that the criminals and people we go after are probably more willing to share and tell others about it through their lifestyle. This may be through Instagram or social media or showing it to their friends.

The Deputy referred to different neighbourhoods and communities where people might feel disempowered and see this as their way out because they look up to Aodhán or Michael, who has a car and a watch and lives a certain lifestyle, all on the back of criminality and all that is behind that. They aspire to get the jacket, the watch and so on. It is really important for us to go into all those communities. We have targets in every county in the country. The Deputy spoke about mini CABs. That is something the bureau has identified or looked at over recent years. We have well over 500 divisional asset profilers, as we call them, throughout the country. The majority of them are gardaí and are attached to the local detective unit or the drug unit. We also have people in Revenue and the Department of Social Protection. We have more than 50 new asset profilers to be trained next Tuesday. We describe them as our eyes and ears in the community. The bureau works very well with those asset profilers to identify criminals, targets and assets in their localities. The work of the Criminal Assets Bureau is not just centred in Dublin or in big rural areas; it is in every corner of the country, both rural and urban.

I am not sure if I got all the Deputy's questions.

Deputy Aodhán Ó Ríordáin

Yes, that is pretty much it.

Mr. Michael Gubbins

Another one to remark on is that we get what we call good citizens' reports. That is where members of the public contact the bureau and say, "I see Michael. He is driving a car. He is a criminal. He is engaged in this, this and this." We log that, look at it and decide if that is someone we will take on. It is very much an all-of-community approach. In the Criminal Assets Bureau we work very well with our Garda colleagues and the community in general. As an aside, when we do our searches in the communities, whether here in Dublin or in a rural area, it is not unusual for someone to pass us and say, "Lads, thanks very much, and well done", or for somebody to contact us, even while we are on site or later that day, to give us additional information. The work we do is important, and people appreciate it. While we spoke about monetary values to date, there is also the importance or the value to the community. When they see somebody stripped of the property, whether it is a house, a car, a watch or clothes, that sends a strong message to that community. They do not really support these people but, let us be honest, they live in silence around them. They really do appreciate it when we come in and take those assets from those individuals.

Deputy Aodhán Ó Ríordáin

I thank Mr. Gubbins. I just want to get the Bar Council's response to the question on constitutionality.

Mr. Seán Guerin

A couple of things could be said in answer to that. The first is that there have been numerous challenges to the constitutionality of asset seizure legislation generally. The principle is now well established that, on proof to the civil standard that assets represent the proceeds of crime, it is entirely constitutional for them to be seized. There are obviously questions of procedural fairness, and if there are maybe two themes underlying the submission by the Bar Council, the first is that there would be a strong preference for the exercise of powers to interfere with property rights to be judicially authorised. That touches on the question Senator Ruane asked earlier. There is obviously a necessity in cases of urgency for orders to be made by police authorities in general terms or by the bureau in the specific case of proceeds of crime, but the Bar Council would take the view that urgency is essentially a question of the amount of time necessary for an application to be made to court. That is obviously a possible area of concern.

We have also raised an issue with the breadth and general terms in which the information-sharing powers are phrased. At this stage it is probably more a matter of European data protection law than Irish constitutional law. Again, it touches on the question of protection of rights that Senator Ruane raised.

The only other issue relates to the question of the shortening of the period for the final disposal order to be made. The submission we made in that respect is that, while there may be a case for shortening the period from seven years, in principle it might make sense to align the period with the general limitation period in the ordinary civil law.

An Cathaoirleach

Senator McDowell is up next.

Senator Michael McDowell

Two things occur to me as regards the reduction from seven years to two years. In general terms, I have no problem with it, but are we taking sufficient care to remember people who might be under a disability, whether through youth, mental illness, dementia or anything like that? As regards the two-year period, is there adequate protection for people who might not be in a position to assert their rights?

Second, I notice the restraint orders that can be sought. Over and above ordinary money-laundering legislation, is there any need for some kind of power to require people to give information to CAB? I refer to codes for computers or things of that kind, codes for bank accounts and confidential information which might be in the possession of professionals or institutions. Are we happy that we have sufficient powers of that kind or do we run into a confidentiality wall on occasions?

Mr. Kevin McMeel

As regards the first part of that, I probably dealt with some of it when I was speaking to Senator Ward. As regards the issue of protections for individuals, a court will not make a section 3 order if an injustice will be caused by the making of that order. That is the section 3 stage. There is provision for people to have legal representation, as I said before, pursuant to section 6 and under the ad hoc legal aid scheme. In the example of an individual who will be affected by the order, we are talking about somebody who may suffer from a disability or maybe a mental illness, who is living or residing in the property and who perhaps had nothing to do with the underlying criminality. The court would have to consider that under the injustice provision. One would assume that the person would be entitled to legal representation. The courts will always seek to find out who is residing in a property before making an order directing that possession of that property be handed over to a receiver. They will generally ensure that those individuals are on notice of the order. Their circumstances, certainly in my experience, would be put to the court, the court would be on notice of it and they would have an opportunity to vindicate their property rights, such as they are, in respect of the property. We have to focus on the overriding purpose of the Act, which is to deprive people of the proceeds of crime. We are talking about circumstances, perhaps difficult circumstances, where somebody is residing in a property that was, for example, purchased with profits from the drugs trade. In that circumstance, the court has determined that if the property is the proceeds of crime, nobody has a constitutionally protected property right to that. The determination of the court will flow from that, but that injustice provision is always there. In the very difficult circumstances the Senator has given by way of example, one would assume that the injustice provision may be invoked.

Senator Michael McDowell

Arising out of that, I have in mind people who are the subject of activated living wills and things like that and who might, for instance, have been a partner in a business or whatever. They will not be aware of it, so there has to be a kind of special duty to people in that category in that, obviously, they are not aware of it and that somebody looks at their possible legitimate interest to protect them. That is all I am saying.

Mr. Kevin McMeel

I think their interest would be protected by the injustice provision and by the provisions I mentioned earlier as regards access to the courts.

Senator Michael McDowell

What about getting information out of people? Does CAB have enough powers on that front?

Mr. Kevin McMeel

I will just review section 14 of the CAB Act, which relates to the warrants. I think there is a provision in it relating to compellability of passwords and such but it is not as effective as we would like it to be.

Senator Michael McDowell

If Mr. McMeel or I were a drug dealer and were reputed to have-----

Senator Lynn Ruane

Senator McDowell benefits from the proceeds of crime as well. It is just more legitimate.

Senator Michael McDowell

-----a numbered account somewhere and it was likely someone knew my numbered account. Has CAB sufficient powers to hunt down information of that kind?

Mr. Kevin McMeel

There is a provision under section 9 of the Proceeds of Crime Act, under which on direction of the court a person can be compelled to give all of their financial information for up to ten years. There is a positive obligation on them to put what is essentially their balance sheet, income and expenditure in an affidavit.

Senator Michael McDowell

I am talking about-----

Mr. Kevin McMeel

A password?

Senator Michael McDowell

My right-hand man knows I have an account and CAB wants to know from him where I have the account, whether that is Dubai or somewhere.

Mr. Kevin McMeel

There is no effective provision that allows us compel an individual to give us a password. I am sure the Bar Council would have concerns about such a provision, but-----

Senator Lynn Ruane

I would.

Senator Michael McDowell

Not all barristers are in that position.

Mr. Kevin McMeel

We do not have an effective provision which will compel people to do that.

An Cathaoirleach

A common question that gets asked is about the powers of stop and search and seizure. If a mobile phone is in someone's hand, to what extent can they be compelled to reveal the information on it and so on? That is an interesting angle of questioning and something we need to consider.

Mr. Kevin McMeel

Under the provisions of subsection 6A of section 14, it says, "A bureau officer who is a member of the Garda Síochána acting under the authority of a warrant". Section 14, which deals with the warrant, says it can require a person at that place who appears to be a member to-----

Senator Michael McDowell

It says a search warrant can have ancillary power.

Mr. Kevin McMeel

It can compel them to give a member any password necessary to operate it.

Senator Michael McDowell

I have in mind a person who is not being searched or is not in a place.

Mr. Kevin McMeel

No, we do not have any such power.

An Cathaoirleach

That concludes the first round and Senator Ruane has her hand up for the second round. Other members may return.

Senator Lynn Ruane

Can we increase the time as there are only two of us?

An Cathaoirleach

No, but I will not crack the whip too hard.

Senator Lynn Ruane

A few things came up. They do not relate directly to the heads of the Bill, but to the principles that in some sense underline it. I am thinking of the case where a house may be taken and a lot of investment went into bringing it up to scratch. However, we see a lot of houses in housing estates where a monetary value is put on it, but there is a cost to the State because it is stripping that house back to what a local authority house should look like. There are currently houses that have been stripped back. They had extensions and different things built on. They must have been local authority houses that had been bought and sold back to the local authority, but have been stripped back completely. The State actually took out all of the investment that went into them. It does not make sense to me. That investment is not how much has been taken. Does that make sense? If a house is given to a person by the local authority, all of the houses have to look the same. They remove porches and extensions. They have to make it look the same as the other housing stock. There are houses where CAB is saying a certain monetary value was taken because the house was brought up to a certain standard because of the investment put in. However, at local authority level, the State is spending money to take that investment back out. It ends up costing the State. The monetary value coming out of a particular home may not be balancing when it comes to how much it costs the State to bring a house back into normal housing stock. I do not know how much that is.

I am also thinking of the case of those local authority houses - this is probably a question for the Department - and whether there should be something in legislation where if a house was originally a local authority house and was then bought or whatever, that it just be returned to the housing stock rather than sold on and money be made from it. When we look at the social good and how we can provide, increasing housing stock in communities where housing has been bought up in that way rather than selling them on to landlords might be a positive social clause when it comes to the community having access to that home. I do not know how many local authority houses end up like that, so the figure might not be that big. I do not know how much impact it would have.

The other issue is about safety innovation and where the money is spent when it comes in. I have an issue with the idea that we are talking in one sense about disrupting criminal activity and the proceeds of crime, but in no way does it reduce the level of crime that is happening. When I look at the conversation about how we frame what CAB can do in taking that, it is not reducing crime. It is not really a targeted approach. I have done a lot of reading on the safety innovation fund and a lot of projects get State funding every year to do the same thing. The criteria on it is two years. There are no capital funds. Communities most impacted by criminal activities have very little space and few buildings to work from. They can barely afford the rent on some of them. They are having to downsize. The criteria to access money that has come through the proceeds of crime is in some cases not ambitious in terms of what the Department is spending it on. It is being spent on things the Government should already be spending on and investing in. There are projects in certain counties. I do not know the concentration of crime in some counties, but there is some expenditure from the Criminal Assets Bureau in terms of the Exchequer and what it says is coming from the proceeds. When you look at the index, there are surely communities and families that are the most impacted whether from addiction, criminality or poverty itself. Yet the expenditure is being spent nationally like a general social good. That does not address why people get into crime in the first place and interrupting it at that level. Has the Department done an analysis? Is it an open call that says there is a fund and where the money for it came from, or is it a fund created specifically to reduce poverty, violence and the impact of crime in specific communities? This would attach the expenditure to where crime happens and is concentrated, instead of it being thinly spread across many organisations across the country. It should be targeted at reducing recidivism. Many people in the prison system want to leave criminality and cannot. I know it seems counter-intuitive to take money from people involved in crime and give it back to people involved in crime, but the goal is about how we interrupt it for good, not just in the moment of taking a certain amount. It is about interrupting it for good by addressing why people get involved in crime. It is poverty and not being able to meet one's economic needs, and that grows from there. There are people in the prison system who have so many ideas for social enterprises and different businesses they would like to run when they get out. They will never be given the opportunity, which will force them to come out and find ways to-----

An Cathaoirleach

I will interrupt the Senator as I have let her go a little over time. I will try to summarise her two points, to which I have listened with interest. If I understand correctly she first spoke about a property that begins life as a local authority property-----

Senator Lynn Ruane

Yes, and it should just be released back to the authority.

An Cathaoirleach

It becomes privately owned and the private ownership transpires to be a criminal enterprise. The Proceeds of Crime Act or similar legislation is invoked to seize that for the State. The Senator's suggestion is that it should just return to the council or local authority.

Senator Lynn Ruane

It should just go back to the State.

An Cathaoirleach

To be fair to the witnesses, her second point is probably more of a general view of the criminal justice system, and how communities that suffer most from crime should receive the rewards.

It is a fair point. I do not know whether it is strictly covered in the Bill, but if witnesses and members-----

Senator Lynn Ruane

It is just that some of this stuff was submitted by the Department.

An Cathaoirleach

That is fine. I am just clarifying that fact. It is probably a bit beyond the scope of the Bill, but if witnesses have views on it, I would be happy to hear them.

We will go around the table for the last time. The people who have not spoken yet or much might like to come in. We will start with the representatives of the Bar and work our way up the table. They can treat this as a last word. Obviously, they should respond to the Senator's comments and questions, but they can take this opportunity to make any final observations.

Mr. Seán Guerin

Given the shortage of time, if there is anything Senator Ruane would like us to deal with, we would happily do that but otherwise-----

Senator Lynn Ruane

I think the reduction of time and the sharing of information were what I was most looking for from the Bar. I think they have covered those.

Mr. Seán Guerin

I think we have covered those.

Mr. Justin Kelly

I think the issues the Senator has raised related to the Department and what happens afterwards.

An Cathaoirleach

The witnesses might want to go over and beyond the Senator's remarks because we are about to wrap up the session. If they want to make a concluding remark, they should feel free to do so at this stage.

Mr. Justin Kelly

The only thing I would add is that the work of the Criminal Assets Bureau is just one aspect of the overall approach to organised crime in this country, particularly the transnational organised crime which has been referenced. From our point of view, we support everything that can be done to make Ireland a hostile environment for them to operate. CAB is one aspect of this and these amendments will definitely go towards that.

Mr. Brendan Bruen

I am genuinely grateful to contributors on this. We have been very fortunate with the input we have got from a variety of stakeholders. We look forward to the report of the committee. A number of points from various directions have been very useful and we need to consider them further. I will not try to express a view.

Three things have guided us on this. By and large, the 1996 Act has stood the test of time. Developments in other jurisdictions now have reflected that. We will need to look at the structures and the legislation in the context of asset recovery and in the context of all the international co-operation work that is happening. There will probably be a need to look at the Criminal Justice Act 1994 also. All we are doing here is addressing narrower practical issues. We have a body of experience and case law. We take the point about the reduction of time which is obviously significant. We do have satisfaction.

As I hope would be obvious, we have engaged very closely with the Office of the Attorney General throughout the development of this to ensure the constitutionality of the approach. The Department is satisfied based on the advice we have received and our analysis that it is appropriate from an individual rights perspective. That is not to say that every question on the scheme has been answered; it certainly has not. There is significant work to be done on drafting and we will do that.

Ultimately, we have seen a development in unexplained wealth and we have seen a development in many other areas in terms of how all this happens. There is enormous potential in the expansion of what we are doing in terms of us recovering assets. That is what everybody is trying to do here. Having cases that run for ten years or more does not serve anybody. What we are doing here is not efficiency for efficiencies sake or efficiency for speed. It is about having a properly expeditious judicial process and having things resolved in a reasonable amount of time even for respondents. That is how this should work. Obviously, we want efficiency and we want CAB to be able to do as much as it can. We want to be able to deprive people of the assets that they should not have. However, it is not speed for speed's sake.

I finally come to Senator Ruane's questions. I must admit that I am at somewhat of a disadvantage because I am coming at this based on the legislation. I know the Department has provided quite a detailed note. The community safety fund reflected that we are taking this money from people who should not have it. There are obviously difficulties with ring-fencing these things and we want to have a stable funding source. Some of the points about how long the horizon would be for projects are very much on people's minds. This was a new programme in 2021. It has increased in size in the last couple of years. It is now at €3.75 million for 2024. It is developing and I hope the criteria can develop alongside that. I will very happily take back the points the Senator raised and I would be happy to provide a written response.

Mr. Kevin McMeel

I wish to address two of the things Senator Ruane raised. I think she was talking about the sales to local authorities. As I am generally the court appointed receiver, I have some insight into this. Unfortunately, the court will direct the sale of a property and the receiver is required to sell it in the open market for the best price reasonably available. If we are receiving the property at the section 4 stage, meaning we have some leeway in whom we can sell it to, as a matter of protocol we will offer it to the Land Development Agency and to the local authority, which will have first refusal. They may decide they are interested in that particular property. We have some quite good news stories. One particular local authority has purchased a tract of land just this year and it has recently received planning permission for social housing on that tract of land. We would like to think we are contributing to returning that land to the extent that we can to assist in the obvious shortage of residential accommodation in the country. Unfortunately, in most instances, we are just required to sell the property. I would be in breach of the order if I offered it at a lower price to the local authority.

The Senator spoke about local authorities changing the properties and reducing the value of those properties. I cannot speak to what local authorities do after they receive properties that were once seized under the Proceeds of Crime Act. However, perhaps extensions to those properties may have built in breach of planning permission. Generally, the types of people we target do not adhere to the planning code to the same extent that many other people would. Often there are breaches of the planning code which I presume the local authority itself would rectify. That might be the reason for that.

To wrap up, some issues were raised and I thought I would have an opportunity to address them. The representatives of the Bar Council spoke of their concerns about the extrajudicial restraint, the administrative restraint, particularly under heads 3 and 4. Head 3 deals with the section 1A process. That was an amendment to the Act in 2016. That 22-day period without recourse to the courts was enacted in 2016. That is not what is being proposed by this Bill. This Bill seeks to put a judicial extension to that. Head 4 is similar. We are looking for a new power which will have an administrative element to it where courts will not have an opportunity to review it for a period of seven days. That is exactly analogous to the section 17 provision which has been in force since 2010 and is used very frequently. I know that the Criminal Assets Bureau has used that provision on average about 750 times a year for the last five years. It has been used nearly 4,000 times in the last five years. Only 2.2% of the applications that we make were initiated through the section 17(1) provision. In only 2.2% of the applications do we not apply to the court in the first instance. The seven-day period is there for a very good reason.

Criminals and fraudsters will often time their criminal offence to take place on a bank holiday or coming up to Christmas time.

On a bank holiday or coming up to Christmas time, everyone receives warnings about holiday fraud. The reason criminals target people at Christmas time is obviously because there is an increase in commercial activity, but also because the banks and the courts are closed. Seven days takes in the practical realities of an investigation such as that. If we do not have an opportunity to get in within those seven days, often people will not even be aware of the fact their bank account has been interfered with. Criminals are wise to what law enforcement can do and what we have. Access to the courts is one of those things. If we can get into court and move our application to secure the order by virtue of section 17(2) or what would be envisaged in this new restraint order, we will do that as promptly as we can because it serves nobody to leave it until the last minute. We suggest that the seven days is something we need. I appreciate the Bar Council submissions insofar as they recognise the requirement for it but caution against the time period for that administrative restraint.

We would say that interference with the individual's property rights is something that happens all the time. In a normal criminal investigation, property is seized as evidence and pending an investigation. People have recourse to challenge that seizure under the police property legislation or, in this instance they have the provisions under sections 19 and 20 of the 2010 Act to challenge that, either within the seven days or thereafter. We would say that people's property rights are vindicated in that sense. Other than that, we would like to wholly endorse the Bill, in line with the written submissions we have made. We think that this will make the Criminal Assets Bureau a more effective organisation and hopefully the Proceeds of Crime (Amendment) Act 2016 a more effective piece of legislation.

Mr. Michael Gubbins

As the chief bureau officer I am conscious of my predecessors, and those to come. We are more than aware of the powers that have been legislated for by the Criminal Assets Bureau. There is more than 27 years of learned experience. It is quite obvious to the public and to the committee the considered and prudent manner in which we apply the legislation that is available to us to do our job. I would thank the committee for the opportunity to speak today and clarify any matters.

Mr. Brendan O'Hara

We do not have to speak to Senator Ruane's items because they would not apply to us. We will continue to work with the Criminal Assets Bureau and the Department to ensure that the legislation operates as is intended.

Mr. Barry Murphy

We ask the committee to consider a recommendation which is minor technical amendments to the definitions, one of which is to broadly outline the definition of "cash" contained in section 22 of the Proceeds of Crime (Amendment) Act 2016. This essentially to bring it in line with the EU cash control regulation.

An Cathaoirleach

I have seen that in the notes. I thank all the witnesses and members for the very useful discussion today. We will have further meetings in private session where will consider all the points made by the different stakeholders and witnesses. We will then prepare a report and we will share it with everyone when we publish it. I hope it does justice to the various submissions and points made. I think it usually does. For the benefit of the members, will publish the opening statements on the committee's website. Is that agreed? Agreed.

Two Private Members' Bills have been referred to the committee. There has been a little bit of a queue over the last term but we will try to get them processed. One is the Firearms and Offensive Weapons (Amendment) Bill 2021, which is pencilled in for a May meeting. The Seller's Legal Pack for Property Buyers Bill 2021 will be considered afterwards. It will probably be June before we get to that.

The next meeting will be with the Minister and her officials on the EU asylum and migration pact.

The joint committee adjourned at 5.45 p.m until 4 p.m. on Tuesday, 23 April 2024.