OFFENCES AGAINST THE State (Forfeiture) Act, 1940

AN ACT TO AUTHORISE THE FORFEITURE TO THE STATE IN CERTAIN CIRCUMSTANCES OF PROPERTY WHICH OR A DOCUMENT OF TITLE TO WHICH, CAME OR COMES, BEFORE OR AFTER THE PASSING OF THIS ACT, INTO THE CUSTODY OR THE PHYSICAL POSSESSION OF THE MINISTER FOR JUSTICE OR A MEMBER OF THE GÁRDA SÍOCHÁNA OR A MEMBER OF THE DEFENCE FORCES IN THE COURSE OR IN CONSEQUENCE OF THE SEARCH OF ANY PREMISES OR THE ARREST OF ANY PERSON OR IN CERTAIN OTHER CIRCUMSTANCES, AND TO PROVIDE FOR MATTERS CONNECTED WITH THE MATTERS AFORESAID. [14th August, 1940.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

1 Definitions.

1.—In this Act—

the expression “the Minister” means the Minister for Justice,

the word “security” means any stock, share, debenture, bond, or other like thing issued by a government, a municipal corporation, a statutory corporation, a limited company, or any other body,

the expression “document of title”, when used in relation to money, means a negotiable instrument, cheque, bank-draft, deposit receipt, postal order, or other document conferring or evidencing the right to receive payment of a specified sum of money (whether with or without interest) and, when used in relation to a security, means a stock certificate, share certificate, debenture, debenture certificate, bond, or other document conferring or evidencing the title to a specified security or notifying the ownership of a specified security,

the word “property” includes any thing which is capable of being forfeited to the State by virtue of this Act and also includes a document of title to any such thing,

the word “endorsement” includes an endorsement which is, expressly or by implication, a receipt.

2 Orders declaring property to be forfeited to the State.

2.—(1) Where any chattel (including in particular a mechanically propelled vehicle) or any money or any document of title to money or any document of title to a security either—

• (a) came, before the passing of this Act into the custody or the physical possession of the Minister or of a member of the Gárda Síochána or of a member of the Defence Forces in the course or in consequence of the search of any premises or the arrest of any person or, in the case of a mechanically propelled vehicle, in the course or in consequence of any such search or arrest or by reason of its being found abandoned and (in any case) is at such passing in the custody or the physical possession of the Minister or of a member of the Gárda Síochána or of a member of the Defence Forces, or

• (b) shall, at any time after the passing of this Act, and before the 3rd day of September, 1941, come into the custody or the physical possession of the Minister or of a member of the Gárda Síochána or of a member of the Defence Forces in the course or in consequence of the search of any premises or the arrest of any person or, in the case of a mechanically propelled vehicle, in the course or in consequence of any such search or arrest or by reason of its being found abandoned,

and (in either such case) the Minister is of opinion that such chattel or such money or the money or the security to which such document of title relates (as the case may be) was acquired by the owner thereof as a result or in the course of, or was being or intended to be used (whether by the owner thereof or any other person) in furtherance of, an activity prejudicial to the peace, order, or security of the State, the Minister may at any time before the 3rd day of September, 1941, by order declare such chattel or such money or such document of title and the money or the security to which it relates (as the case may be) to be forfeited to the State.

• (2) Every order made by the Minister under the foregoing sub-section of this section shall be in the form set out in the Schedule to this Act, and a copy thereof shall, if practicable, be served on the owner of the property to which such order relates, but the impracticability or the omission of such service shall not prejudice or affect the operation or effect of such order.

3 Consequences of a forfeiture order.

3.—(1) Whenever the Minister by an order made under this Act declares any property to be forfeited to the State, such property shall forthwith become and be forfeited to the State, and thereupon such of the following provisions as are applicable shall have effect, that is to say:—

• (a) such property, if and in so far as it consists of a chattel (including a mechanically propelled vehicle but excluding money), may be used for the purposes of the State or be sold or otherwise disposed of for the benefit of the Exchequer in such manner as the Minister for Finance shall direct or may, with the consent of the Minister for Finance, be destroyed;

• (b) such property, if and in so far as it consists of money, shall be delivered to the Minister for Finance and that Minister may, where requisite, sell or exchange such money and shall, in any case, dispose of such money or of the net proceeds of such sale or exchange (as the case may be) in accordance with this Act;

• (c) if and in so far as such property consists of a document of title to money—

• (i) the said order shall operate to transfer to and vest in the Minister for Finance the right to receive payment by virtue of such document of the money to which it relates, and

• (ii) if such document requires endorsement, the endorsement thereof by the Minister for Finance or by the Secretary of the Department of Finance in accordance with this section shall be a good and sufficient endorsement thereof, and

• (iii) the Minister for Finance shall obtain payment of the said money and shall dispose of the same in accordance with this Act;

• (d) if and in so far as such property consists of a document of title to a security—

• (i) the said order shall operate to transfer such security to the Minister for Finance, and

• (ii) if such security is transferable by mere delivery of the said document, or by endorsement and delivery thereof, the said document shall be deemed to have been lawfully delivered to the Minister for Finance, and

• (iii) if such security is transferable by mere endorsement of the said document or by endorsement and delivery thereof, the endorsement of that document by the Minister for Finance or by the Secretary of the Department of Finance in accordance with this section shall be a good and sufficient endorsement thereof, and

• (iv) if such security is required by law to be transferred by deed or writing, the said order shall operate as a deed or writing duly executed by all necessary parties and capable of registration (where registration is necessary) transferring such security to the Minister for Finance, and

• (v) if such security is transferable only by entries in a register, folio, or book, the said order shall operate to authorise and require the proper entries for transferring such security to the Minister for Finance to be made by the proper officer in such register, folio, or book, and

• (vi) in any case, the Minister for Finance may sell the said security, and if he does so, shall dispose of the net proceeds of such sale in accordance with this Act;

• (e) if and in so far as such property consists of a mechanically propelled vehicle, the said order shall operate to transfer to and vest in the Minister for Finance the ownership of such vehicle and to entitle that Minister to procure himself to be registered in the books of the appropriate local authority as the owner of such vehicle.

• (2) Whenever the Minister for Finance or the Secretary of the Department of Finance endorses, by virtue of the authority conferred by this section, a document of title, he shall effect such endorsement:

• (a) where such document would, if this section had not been enacted, be required to be endorsed by a particular person, by writing the name of that person and appending thereto his own signature and a statement of the office held by him, or

• (b) in any other case, by signing his own name and adding a statement of the office held by him.

4 Right of application to the High Court.

4.—(1) Any person who claims to be the owner of property forfeited to the State by virtue of an order made by the Minister under this Act may, within two months after the service of a copy of such order on him or, where there has been no such service on him, within six months after the date of such order, apply to the High Court in a summary manner on notice to the Attorney-General for the return to him of such property or where, owing to a sale of such property under this Act or for any other reason, such return is impracticable, for compensation for the loss of such property.

• (2) Where on an application under the foregoing sub-section of this section, the High Court, after hearing such evidence as may be adduced by the applicant or by the Attorney-General, is satisfied that when the property to which such application relates came into the custody or the physical possession of the Minister or of a member of the Gárda Síochána or of a member of the Defence Forces (as the case may be), it was the lawful property of the applicant or of a person through or under whom the applicant claims and was not acquired by the applicant or other person aforesaid as a result or in the course of an activity prejudicial to the peace, order, or security of the State and was not being or intended to be used (whether by the applicant or any other person) in furtherance of any such activity and that, if such property is returned or compensation in respect thereof is paid to the applicant, such property or compensation will not be used by the applicant or with his consent in furtherance of any such activity as aforesaid, the High Court may direct either (as the circumstances shall require) that such property be returned to the applicant or that compensation for the loss thereof be paid to the applicant by the Minister for Finance.

• (3) The High Court shall not direct, under the next preceding sub-section of this section, the return of or the payment of compensation in respect of any property unless the applicant for such direction himself gives evidence in support of the application and submits himself to cross-examination by counsel for the Attorney-General.

• (4) Where the High Court, or the Supreme Court on appeal from the High Court, makes an order directing under this section the return of or the payment of compensation in respect of any property, that Court may by such order impose such conditions as such Court shall think expedient for securing that such property or compensation (as the case may be) shall not be used or applied for the furtherance of any activity prejudicial to the peace, order, or security of the State and may, in particular, require the applicant, before receiving such property or compensation, to enter into a recognisance for his good behaviour.

• (5) Where the High Court, or the Supreme Court on appeal from the High Court, directs under this section the payment of compensation in respect of any property, that Court shall fix the amount of such compensation, but such compensation shall consist only of, in the case of money which is lawful currency in Ireland, the actual amount of such money or of, in any other case, the net capital sum realised by the Minister for Finance by the sale, exchange, enforcement, or other realisation of such property together with, in the case of a security producing interest, dividends, or other income, the amount of such income actually received by the Minister for Finance.

• (6) The costs of the applicant and of the Attorney-General of an application to the High Court under this section shall be paid by the applicant unless the High Court, or the Supreme Court on appeal from the High Court, expressly otherwise orders, but the costs of an appeal to the Supreme Court shall be in the discretion of that Court.

• (7) Where, on an application under this section, the High Court, or the Supreme Court on appeal from the High Court, directs any compensation to be paid by the Minister for Finance to the applicant and the costs or any part of the costs of the Attorney-General of such application or of such appeal are or is payable by such applicant, the said Minister may, without prejudice to any other mode of recovery, deduct from the said compensation so payable to such applicant the amount of the costs so payable by such applicant or so much of such costs as such compensation is sufficient to meet.

5 Disposal of moneys received by the Minister for Finance.

5.—(1) All moneys delivered to the Minister for Finance in pursuance of this Act (other than moneys sold or exchanged by the Minister for Finance after such delivery), the net proceeds of the sale, exchange, or other disposition of any property (including money) sold, exchanged, or otherwise disposed of by the Minister for Finance under this Act, and all income received by the Minister for Finance from any property transferred to him by the operation, by virtue of this Act, of an order made by the Minister under this Act shall be lodged to a separate account (in this section referred to as the said separate account) in the custody and under the control of the Minister for Finance.

• (2) All compensation payable by the Minister for Finance in pursuance of an order of a Court made under this Act shall be paid out of the said separate account.

• (3) Such balances in the said separate account as from time to time appear to the Minister for Finance not to be required for the payment of compensation in pursuance of the next preceding sub-section of this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance shall direct.

6 Expenses.

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

7 Short title.

7.—This Act may be cited as the Offences Against the State (Forfeiture) Act, 1940.

SCHEDULE. Form of Order.

I, ____ Minister for Justice, in exercise of the powers conferred on me by section 2 of the Offences Against the State (Forfeiture) Act, 1940 (No. 27 of 1940), do hereby declare the following property _______ ________ ___________ to be forfeited to the State under the said Act.

GIVEN under my Official Seal this__day

of___, 19__