Criminal Justice Act , 1994

PART I Preliminary

1 Short title.

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

2 Commencement.

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

3 Interpretation.

3.—(1) In this Act—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“drug trafficking offence” means any of the following—

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

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

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

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

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

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

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

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

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

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

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

“Minister” means the Minister for Justice;

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

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

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

“realisable property” means—

(a) any property held by the defendant, and

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

but does not include property which is the subject of—

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

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

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

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

“ship” includes any vessel used in navigation;

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

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

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

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

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

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

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

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

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

and

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

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

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

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

whichever is the greater.

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

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

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

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

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

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

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

whichever is the greater.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(12) For the purposes of this Act—

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

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

(13) This Act applies to property wherever situated.

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

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

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

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

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

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

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

(e) proceedings for an offence are instituted—

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

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

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

(f) proceedings for an offence are concluded—

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

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

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

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

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

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

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

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

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

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

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

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

PART II Confiscation

4 Confiscation orders: drug trafficking offences.

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

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

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

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

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

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

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

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

shall be that applicable in civil proceedings.

5 Assessing the proceeds of drug trafficking.

5.—(1) For the purposes of this Act—

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

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

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

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

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

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

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

(a) that any property appearing to the court—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) shall—

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

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

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

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

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

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

8 Revised assessment of proceeds of drug trafficking.

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

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

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

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

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

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

or

(b) in any earlier period.

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

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

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

(7) In relation to any such determination—

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

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

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

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

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

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

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

9 Confiscation orders: offences other than drug trafficking offences.

9.—(1) Where a person has been sentenced or otherwise dealt with in respect of an offence, other than a drug trafficking offence, of which he has been convicted on indictment, then, if an application is made, or caused to be made, to the court by the Director of Public Prosecutions the court may, subject to the provisions of this section, make a confiscation order under this section requiring the person concerned to pay such sum as the court thinks fit.

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

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

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

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

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

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

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

whichever is the less.

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

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

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

shall be that applicable in civil proceedings.

10 Statements relevant to making confiscation orders.

10.—(1) Where—

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

(i) the determination of whether the defendant—

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

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

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

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

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

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

(3) Where—

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

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

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

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

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

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

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

(5) Where—

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

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

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

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

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

(a) orally before the court,

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

(c) as the court may direct.

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

11 Provision of information by defendant.

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

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

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

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

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

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

12 Supplementary provisions concerning confiscation orders.

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

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

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

(a) any fine imposed on him,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) any fine imposed on him,

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

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

15 Appeal against confiscation order.

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

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

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

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

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

16 Variation of confiscation orders.

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

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

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

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

17 Variation of confiscation orders made by virtue of section 13.

17.—(1) This section applies where—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18 Increase in value of realisable property.

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

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

PART III Enforcement, etc. of Confiscation Orders

19 Enforcement of confiscation orders.

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

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

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

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

TABLE

Amount outstanding under confiscation order	Period of imprisonment
Not exceeding £500	45 days
Exceeding £500 but not exceeding £1,000	3 months
Exceeding £1,000 but not exceeding £2,500	4 months
Exceeding £2,500 but not exceeding £5,000	6 months
Exceeding £5,000 but not exceeding £10,000	9 months
Exceeding £10,000 but not exceeding £20,000	12 months
Exceeding £20,000 but not exceeding £50,000	18 months
Exceeding £50,000 but not exceeding £100,000	2 years
Exceeding £100,000 but not exceeding £250,000	3 years
Exceeding £250,000 but not exceeding £1 million	5 years
Exceeding £1 million	10 years

20 Realisation of property.

20.—(1) Where—

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

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

(c) the confiscation order has not been satisfied,

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

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

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

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

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

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

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

21 Interest on sums unpaid under confiscation orders.

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

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

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

22 Application of proceeds of realisation.

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

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

23 Cases in which restraint orders may be made.

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

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

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

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

or

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

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

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

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

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

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

24 Restraint orders.

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

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

(3) A restraint order may apply—

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

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

(4) A restraint order—

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

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

(5) A restraint order—

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

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

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

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

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

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

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

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

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

(b) removing the property from the State.

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

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

25 Registration of restraint orders.

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

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

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

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

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

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

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

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

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

26 Exercise of powers by High Court or receiver.

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

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

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

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

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

27 Receivers: supplementary provisions.

27.—Where a receiver takes any action—

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

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

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

28 Bankruptcy of defendant, etc.

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

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

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

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

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

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

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

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

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

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

and

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

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

29 Property subject to restraint order dealt with by Official Assignee.

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

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

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

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

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

30 Winding up of company holding realisable property.

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

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

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

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

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

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

(3) In this section—

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

“relevant time” means—

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

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

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

PART IV Money Laundering

31 Money laundering, etc.

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

(a) conceals or disguises any property which is, or in whole or in part directly or indirectly represents, his proceeds of drug trafficking or other criminal activity, or

(b) converts or transfers that property or removes it from the State,

for the purpose of avoiding prosecution for an offence or the making or enforcement in his case of a confiscation order.

(2) A person shall be guilty of an offence if, knowing or believing that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking or other criminal activity, he—

(a) conceals or disguises that property, or

(b) converts or transfers that property or removes it from the State,

for the purpose of assisting any person to avoid prosecution for an offence or the making or enforcement of a confiscation order.

(3) A person shall be guilty of an offence if he handles any property knowing or believing that such property is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking or other criminal activity.

(4) In subsection (1) (a) and (2) (a) of this section the references to concealing or disguising any property include references to concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it.

(5) In subsections (1) (b) and (2) (b) of this section the references to converting, transferring or removing any property include the provision of any advice or assistance in relation to converting, transferring or removing such property.

(6) For the purposes of subsection (3) of this section, a person handles property if he dishonestly—

(a) receives it, or

(b) undertakes or assists in its retention, removal, disposal or realisation by or for the benefit of another person, or

(c) arranges to do any of the things specified in paragraph (a) or (b) of this subsection.

(7) Where a person does, in relation to any property which is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking or of any other criminal activity, any of the acts specified in subsection (2) or (3) of this section in such circumstances that it is reasonable to conclude that he knew or believed that the property was, or in whole or in part directly or indirectly represented, another person's proceeds of drug trafficking or other criminal activity, he shall be taken to have so known or believed unless the court or jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he so knew or believed.

(8) In this section believing property to be, or in whole or in part directly or indirectly to represent, another person's proceeds of drug trafficking or other criminal activity includes thinking that the property was probably, or probably represented, such proceeds.

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

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

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 14 years or to both.

(10) Offences created by this section shall be felonies.

(11) The provisions of this section shall, in so far as they relate to the proceeds of drug trafficking or other criminal activity, apply whether the drug trafficking or other criminal activity concerned took place in the State or elsewhere, and whether it occurred before or after the commencement of this section, provided that where the trafficking or other activity occurred outside the State it corresponded to an offence under the law of the State and amounted to an offence under the law of the country or territory in which it occurred.

32 Measures to be taken to prevent money laundering.

32.—(1) This section shall apply to the following persons or bodies (referred to in this section as “designated bodies”) namely—

(a) a body licensed to carry on banking business under the Central Bank Act, 1971 or authorised to carry on such business under regulations made under the European Communities Act, 1972,

(b) a building society incorporated or deemed to be incorporated under section 10 of the Building Societies Act, 1989,

(c) a person authorised to carry on a money broking business under section 110 of the Central Bank Act, 1989,

(d) a society licensed to carry on the business of a trustee savings bank under section 10 of the Trustee Savings Banks Act, 1989,

(e) a life assurance undertaking which is the holder of an authorisation under the Insurance Acts, 1909 to 1990, or under regulations made under the European Communities Act, 1972,

(f) a person providing a service in financial futures and options exchanges within the meaning of section 97 of the Central Bank Act, 1989,

(g) An Post,

(h) ACC Bank p.l.c.,

(i) ICC Bank p.l.c.,

(j) a society which is registered as a credit union under the Industrial and Provident Societies Acts, 1893 to 1978, by virtue of the Credit Union Act, 1966,

(k) a person providing a service in relation to buying and selling stocks, shares and other securities,

(l) a person providing foreign currency exchange services, and

(m) any other person or body prescribed in regulations made under subsection (10) (a) of this section.

(2) This section shall apply in respect of the carrying out of one or more of the operations which are included in numbers 2 to 12 and 14 of the list annexed to Council Directive 89/646/EEC, activities to which Council Directive 79/267/EEC as amended applies or any other activity which may be prescribed in regulations made under subsection (10) (b) of this section.

(3) A designated body shall take reasonable measures to establish the identity of any person for whom it proposes to provide a service of a kind mentioned in subsection (2) of this section—

(a) on a continuing basis, or

(b) in respect of transactions that, either as an individual transaction or a series of transactions which are or appear to be linked, amount in the aggregate to at least £10,000 or the amount for the time being prescribed by regulations made under subsection (10) (c) of this section, or

(c) otherwise where it suspects that a service is connected with the commission of an offence under section 31 of this Act.

(4) For the purposes of paragraph (b) of subsection (3) of this section, where the sum involved is not known at the time of the transaction, the obligations arising under this section shall apply as soon as it is established that the sums involved amount to at least the sum mentioned in the said paragraph of subsection (3) of this section.

(5) Where a designated body proposes to provide a service of a kind mentioned in subsection (2) of this section for a person whom it knows or has reason to believe to be acting for a third party, the designated body shall take reasonable measures to establish the identity of the third party.

(6) This section shall not apply where a designated body provides a service for another designated body or a body corresponding to a designated body in a member state of the European Union or a state or country which stands prescribed for the time being for the purposes of this subsection.

(7) Subsections (3), (4) and (5) of this section shall not apply to a life assurance undertaking referred to in subsection (1) (e) of this section in a case where—

(a) the amount or amounts of the periodic premiums to be paid in respect of the life assurance policy in any twelve month period does not or do not exceed £700 or the amount for the time being prescribed for the purpose of this paragraph by regulations made under subsection (10) (e) of this section unless the amount or amounts of the periodic premiums is or are increased so as to exceed in any twelve month period £700 or the amount so prescribed as the case may be, or

(b) a single premium to be paid in respect of the life assurance policy does not exceed £1,750 or the amount for the time being prescribed for the purpose of this paragraph by regulations made under subsection (10) (e) of this section,

and the said subsections (3), (4) and (5) shall not apply in the case where the life assurance policy is in respect of a pension scheme taken out by virtue of a contract of employment or the occupation of the person to be insured under the policy, provided that the policy in question does not contain a surrender clause and may not be used as collateral for a loan.

(8) Subsections (3), (4) and (5) of this section shall not apply to a life assurance undertaking referred to in subsection (1) (e) of this section in a case where there is a transaction or a series of transactions taking place in the course of its business in respect of which payment is made from an account held in the name of the other party with a designated body or a body corresponding to a designated body as referred to in subsection (6) of this section.

(9) Where a designated body identifies a person for the purposes of this section, it shall retain the following for use as evidence in any investigation into money laundering—

(a) in the case of the identification of a customer or proposed customer, a copy of all materials used to identify the person concerned for a period of at least 5 years after the relationship with the person has ended,

(b) in the case of transactions, the original documents or copies admissible in legal proceedings relating to the relevant transaction for a period of at least 5 years following the execution of the transaction.

(10) The Minister may by regulations—

(a) following consultation with the Minister for Finance, prescribe other persons or bodies to be designated bodies for the purposes of this section, being persons or bodies whose business consists of or includes the provision of services involving the acceptance or holding of money or other property for or on behalf of other persons or whose business appears to the Minister to be otherwise liable to be used for the purpose of committing or facilitating the commission of offences under section 31 of this Act or any corresponding or similar offences under the law of any other country or territory,

(b) following consultation with the Minister for Finance, prescribe activities for the purposes of subsection (2) of this section which appear to the Minister to be liable to be used for the purpose of committing or facilitating the commission of offences under section 31 of this Act or any corresponding or similar offences under the law of any other country or territory,

(c) following consultation with the Minister for Finance, prescribe an amount for the purposes of subsections (3) (b) and (4) of this section,

(d) following consultation with the Minister for Finance, prescribe states or countries for the purposes of subsection (6) of this section,

(e) following consultation with the Minister for Enterprise and Employment, prescribe amounts for the purposes of subsections (7) (a) and (b) of this section.

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

(12) A person who contravenes a provision of this section or who provides false or misleading information for the purposes of subsection (3), (4) or (5) of this section when required to do so under this section shall be guilty of an offence and shall be liable—

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

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

PART V Drug Trafficking Offences at Sea

33 Drug trafficking offences on Irish ships.

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

34 Ships used for drug trafficking.

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

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

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

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

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

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

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

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

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

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

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

35 Enforcement powers in respect of ships.

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

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

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

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

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

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

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

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

36 Jurisdiction and prosecutions in relation to offences on ships.

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

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

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

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

37 Convention states.

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

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

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

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

PART VI Drug Trafficking Money Imported or Exported in Cash

38 Seizure and detention.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

39 Forfeiture of cash seized under section 38.

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

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

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

40 Appeal against section 39 order.

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

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

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

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

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

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

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

41 Interest.

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

42 Procedure.

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

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

43 Interpretation of Part VI.

43.—(1) In this Part of this Act—

“cash” includes coins and notes in any currency;

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

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

44 Prescribed sum for purposes of section 38.

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

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

45 Disposal of cash etc. forfeited under section 39.

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

PART VII International Co-operation

46 External confiscation orders, etc.

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

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

(b) of recovering—