5.1 In its 2002 and 2004 Annual Reports the Office identified the legal remedies of Criminal Confiscation and Forfeiture of Assets as meriting special attention. This was because taking away the assets of convicted criminals under the provisions of the Criminal Justice Act 1994 (as amended) has been demonstrated to be an effective deterrent to the commission of further criminal offences.
5.2 Under the provisions of section 4 of the Criminal Justice Act 1994 (as amended) once a person has been convicted on indictment of a drug trafficking offence and sentenced, the Court of trial must determine whether the convicted person has benefited from the offence, the extent to which he has benefited and the amount that is realisable to discharge a Confiscation Order. The Court then makes a Confiscation Order for that figure. This is a mandatory investigation and the Court is assisted in identifying the proceeds of drug trafficking by the presumptions set out under section 5 of the Act, i.e. the presumption that any money received by the accused person within six years before the institution of proceedings was received as a payment or award in connection with drug trafficking. These presumptions can be challenged by the accused and in order to succeed, he has to prove on the balance of probabilities that they are wrong.
5.3 Section 9 of the 1994 Criminal Justice Act 1994 (as amended) applies to offences other than drug offences prosecuted on indictment except that the Court makes a determination only where an application is made by the Director of Public Prosecutions. The presumptions available to the Court under section 4 enquiries are not available in section 9 cases. The monies that can be confiscated under section 9 cases are limited to the benefit gained from the particular offence for which the person has been convicted. The standard of proof set by the Act under both provisions is the civil standard on the balance of probabilities.
5.4 The amount set by the Court becomes a judgment debt payable by the convicted person which can if necessary be enforced by a prison term.
5.5 Under section 24 of the Act the High Court has the power to grant a restraint order freezing the assets of an accused person once the DPP has decided to bring a prosecution. These orders are designed to prevent the dissipation of assets prior to a possible conviction being recorded against an accused person. A receiver can also be appointed before conviction to gather up identified assets, particularly depreciating ones, and either dispose of, or manage them to ensure the maximum value available to the Court if it makes a confiscation order. Section 20 allows for the appointment of a receiver, once a confiscation order has been made, to realise identified assets to meet the sum decided by the Court as being the benefit gained by the accused from his offence.
5.6 Section 38 of the Act authorises the seizure of cash where a member of An Garda Síochána or an officer of Customs and Excise has reasonable grounds for suspecting that the cash (including cash found during a search) represents any person’s proceeds from criminal conduct. The cash seized by a Garda or an officer of Customs and Excise may not be detained for more than 48 hours unless the further detention of the cash is authorised by a Judge of the District Court. Applications can be made to Court to continue to detain the cash for periods of up to two years. Under section 39 of the Act a Judge
of the Circuit Court may order the forfeiture of any cash which has been seized under section 38 of the Act if satisfied that the cash directly or indirectly represents the proceeds of crime or is intended to be used by any person for use in drug trafficking. An application under section 39 must be made by the DPP and the standard of proof is on the civil standard of the balance of probabilities.
5.7 Section 61 of the Act allows for forfeiture of any property used to commit, or to facilitate any offence, in either the District Court or Circuit Court. The recent decision in Shane Howell v. Judge Patrick Moran and the Director of Public Prosecutions upheld the power of a court to make an order under this section in respect of the affected property, and the Court may do so whether or not it deals with an offender in respect of the offence in any other way. This Office brings applications under the section in relation to a wide variety of assets, such as cars used to transport criminals to and from crime scenes, as well as money and instruments of crime such as drug preparation equipment found at the crime scene, or near to it.
5.8 There is a dedicated Asset Seizing Unit within the Solicitors Division of the Office. This unit is tasked with implementing the strategy outlined by the Office in its 2004 Annual Report and with monitoring and co-ordinating all applications brought under the Act. The Office has assisted An Garda Síochána in the training of Garda officers in the investigation of these issues.
5.9 Asset Seizing was specifically addressed at our Annual State Solicitors’ Seminars in 2004 and 2007 where presentations were given to all state solicitors.
5.10 The Office continues to engage with An Garda Síochána, state solicitors and the Office of the Revenue Commissioner to ensure best practice in the area of criminal confiscation and forfeiture of assets.
5.11 In 2007, approximately 28 confiscation and forfeiture orders were made. These orders totalled €412,300 approximately. During this period, there were also confiscation orders for three section 39 cases totalling €221,570 approximately.
5.12 The Office is committed to ensuring that the remedies available under the Criminal Justice Act 1994 are fully utilised and that the question of ‘benefit’ is addressed in every prosecution on indictment and, where appropriate, the profits of the criminal activity and instruments used to facilitate such criminality are identified and confiscated.