1

How does Civil Forfeiture affect due process rights in Ireland?

Thomas Casey

09006084

Master of Arts in Human Rights in Criminal Justice

September 2014

Supervisor: Dr Shane Kilcommins

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Authors Declaration This study is solely the work of the author, in the author’s own words, and the sources

identified in researching it are fully acknowledged and all quotations properly identified.

This project is submitted in partial fulfilment for the requirements of the Degree of Master of

Arts in Human Rights in Criminal Justice

SIGNED:_______________________

Acknowledgements

Firstly I would like to thank my supervisor, Dr Shane Kilcommins for his assistance and

support, which has been critical in the development of this research project.

Also I would like to thanks my family whose patience has been a continuous presence

throughout this project and my studies over the past five years.

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Abstract This project conducts an examination into the development of civil forfeiture in Ireland and

internationally and the impact that it has had on the due process rights of the individual . In

1996 the murders of a journalist and a member of an Garda Síochana caused a national

outrage. In response the Irish Government introduced civil forfeiture through the Proceeds of

Crime Act 1996 and set up the Criminal Assets Bureau as a multiagency body to implement

the legalisation. Under this legislation, even in the absence of criminal conviction, a person

may be restrained from using his/her assets if it is suspected that they are the Proceeds of

Crime. Court hearings are conducted based on the civil standard of the balance of

probabilities.

While this legislation has been praised by law enforcement had prosecutors as a necessary

step in combatting organised crime, it has been criticised by defence lawyers for being

‘radical and Kafkaesque’1.

The adoption of civil forfeiture in Ireland also represents a shift to a ‘middleground system of

justice’ where criminal law matters are now being resolved in the civil law forum. This

system can be seen to have affected other countries such as the United States and the United

Kingdom. This thesis aims to examine how countries such as Ireland, the UK and the US, by

shifting to civil instruments, how these instruments circumvent criminal law and if they are

having a negative impact of respondents civil and constitutional rights.

1 Counsellor for the respondent in Gilligan v CAB 1997 IR 526

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Table of Contents Declaration .............................................................................................................................................. 2

Abstract ................................................................................................................................................... 2

Introduction ............................................................................................................................................ 5

Methodology ....................................................................................................................................... 7

Chapter 1 ................................................................................................................................................. 8

The Dichotomy between Civil Law and Criminal Law and the Emergence of a ‘Middleground’ of

Justice ...................................................................................................................................................... 9

The Criminal/Civil Law dichotomy .................................................................................................... 10

Criminal Law ...................................................................................................................................... 10

Civil Law ............................................................................................................................................ 12

The establishment of a ‘middle ground’ of punitive civil sanctions ................................................. 13

Conclusion ......................................................................................................................................... 14

Chapter 2 ............................................................................................................................................... 15

The Growth of crime in Ireland ............................................................................................................. 15

Introduction ...................................................................................................................................... 15

Social factors that led to the rise of crime in Ireland ........................................................................ 15

Impact of the Troubles ...................................................................................................................... 17

Money Laundering ............................................................................................................................ 17

Responses to criminal activity by the Irish State .............................................................................. 18

The capabilities of the State in relation to arrest and detention. .................................................... 19

The Right to Silence .......................................................................................................................... 19

Anti-Money Laundering legalisation ................................................................................................. 20

A Continuing threat ........................................................................................................................... 20

Conclusion ......................................................................................................................................... 21

Part 2 ..................................................................................................................................................... 22

Chapter 3 ............................................................................................................................................... 23

Civil forfeiture legalisation in the United Kingdom and the United States........................................... 23

Balance of Probabilities .................................................................................................................... 23

Civil forfeiture in the United Kingdom .............................................................................................. 24

Proceeds of Crime Act 2002 .............................................................................................................. 26

Production orders ............................................................................................................................. 26

Search and Seizure Warrants, ........................................................................................................... 26

Customer Information Orders and Account Monitoring Orders. ..................................................... 26

5

Civil recovery proceedings ................................................................................................................ 27

Civil forfeiture in the United States .................................................................................................. 28

Types of civil forfeiture in the United States .................................................................................... 29

Conclusion ......................................................................................................................................... 31

Chapter 4- The development of civil forfeiture in Ireland .................................................................... 32

The rationale for the use of civil forfeiture in Ireland ...................................................................... 33

Conviction based forfeiture .............................................................................................................. 34

Civil forfeiture in Ireland ................................................................................................................... 34

Bureau Staff ...................................................................................................................................... 36

Powers of the Criminal Assets Bureau .............................................................................................. 36

Civil forfeiture Powers-Interim, Interlocutory and Disposal Orders ................................................. 36

Standard of Proof .............................................................................................................................. 38

Safeguards ......................................................................................................................................... 38

Revenue Powers ............................................................................................................................... 39

Social Welfare Powers ...................................................................................................................... 40

Challenges to civil forfeiture in Ireland ............................................................................................. 41

Conclusion: Impact of Civil forfeiture in Ireland ............................................................................... 43

Conclusion ............................................................................................................................................. 45

Bibliography .......................................................................................................................................... 48

Case Law................................................................................................................................................ 53

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Introduction At the heart of any responsible government’s agenda, there is an obligation to ensure that

citizens feel safe and secure in their homes and in the communities in which they live.

However in the modern era, organised crime has emerged as a sophisticated and specialised

form of criminality. Trafficking in drugs, people, weapons, prostitution, fraud and financial

crimes have become big business with a turnover of billions annually. Underpinning this

criminal activity are sophisticated money laundering operations which transform the proceeds

of crime into bankable profits2.

In Europe, the term organised crime has been used to describe professional criminals who

distinguish themselves by the proficient and business-like way in which they commit certain

crimes. While the types of offences being committed have remained unchanged throughout

the years, criminal networks have adapted with changes in technology and now have become

more networked and integrated than ever before.3 Organised criminals are described as

‘persons involved normally working with others, in continuing serious criminal activities for

substantial profit, whether based locally or elsewhere4. These illegally obtained funds are

then put through a process, known as money laundering in order to make them appear

legitimately obtained and usable5.

In order to dismantle these criminal organisations, law enforcement has begun the recover the

profits and to seize the assets of criminals through a system known as civil forfeiture. By

using civil forfeiture, the state doesn’t have to prove a criminal charge, unlike traditional

conviction based forfeiture. The State does not have to prove that the assets in question are

the proceeds of crime beyond all reasonable doubt but rather on the balance of probabilities6.

However civil forfeiture is considered to be a ‘legal juggernaut’ ‘which has severely

undermined the privilege against self-incrimination and other due process safeguards, such

as the prohibition of double jeopardy, the right to trial by jury and the presumption of

innocence.’7

In recent years, particularly in the United States, Britain and Ireland, civil forfeiture has been

used by law enforcement agencies to reduce the supply of narcotics and is widely perceived

to be an effective deterrent against criminal acts. Countries such as Ireland, the United

Kingdom and the United States have used civil forfeiture to great effect in combatting drug

trafficking and have extended the use of civil forfeiture to non-drug related offences.

2 Home Office ‘One Step Ahead: A 21

st Century Strategy to Defeat Organised Crime’ (2004) (Norwich Crown

Copyright) 3 Ibid, p 7 4 Ibid, p3 5 Hasmet Sarigul ‘Money Laundering and the Abuse of the Financial System (2013) International Journal of Business and Management Studies 2(1) 287-301. 6 Booz Allen Hamilton ‘Comparative Evaluation of Unexplained Wealth Orders’ (Prepared for the US Department of Justice, National Institute of Justice, October 31st 2011) 7 Tamara Piety, ‘Scorched Earth: How the Expansion of civil forfeiture has laid waste to due process’ (University of Miami Law Review, 911-1990-1991)

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Of particular note Ireland has stood out in the International Community as a prime example

of how to use civil forfeiture. In the early 1990s Ireland struggled to control a drug epidemic

using traditional criminal law methods. Following several high-profile murders, the Irish

Government set up the Criminal Assets Bureau and the Proceeds of Crime Act (PoCA) as a

way of facilitating the civil seizure of property obtained through the proceeds of crime. By

enacting PoCA, Ireland became one of the first countries in Europe to adopt a civil forfeiture

regime that reverses the burden of proof onto the respondent. At the time of enactment, the

legalisation marked a new approach to addressing organised crime, transitioning it from a

reactive conviction based confiscation of assets under the Criminal Justice Money

Laundering Act 1994, to a proactive crime control strategy. The broad nature of the Acts was

recognised by academics, lawyers and the courts. Defence Lawyers have criticised the Act

for infringing on respondents constitutional rights while prosecutors have justified its

enactment as a necessary response to the threat of organised crime. The constitutionality of

the PoCA has been challenged on numerous occasions but to date has been upheld by the

courts8.

This thesis seeks to examine how civil forfeiture has impacted on due process rights in

Ireland and also with reference to other countries such as the United States and the United

Kingdom. Since its enactment the PoCA has been labelled a disproportionate response to

crime and has been challenged on the grounds that it is in fact a defacto criminal law in the

guise of civil law. In Gilligan, it was stated that the Act ‘carves out uncharted terrain…at a

great cost to civil liberties and constitutional rights9’Despite the challenges to the legislation,

the Irish Courts have upheld the constitutionality of PoCA. It has served has a model for

other countries in designing and drafting civil forfeiture regimes such as the United Kingdom.

Methodology This thesis will be divided into 2 parts. The first part will consist of 2 chapters. Chapter 1 will

examine the establishment of a ‘middleground of justice’ and how it has been used by the

State to impose sanctions on those who are suspected of committing criminal activities. The

second chapter will look at the increasing rates of crime in Ireland and will seek to

understand how the State got to the stage where the decision was taken to introduce non-

conviction based forfeiture in Ireland.

The second part of this thesis will examine the development of this ‘middleground system of

justice in the United States, the United Kingdom and the Republic of Ireland, through the

example of civil forfeiture has how it operates in these jurisdictions. This ‘middleground’

refers to the use of civil law in order to complete criminal law objectives. Chapter 3 will

8 Booz Allen Hamilton ‘Comparative Evaluation of Unexplained Wealth Orders’ (Prepared for the US Department of Justice, National Institute of Justice, October 31st 2011)

9 Gilligan v CAB [1997] IR 526.

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examine the United States and the United Kingdom civil forfeiture regimes and how they

have affected due process rights in their respective countries.

Finally chapter 4 will examine the nature of civil forfeiture in Ireland. It will examine the

Anti-Crime Package of 1996 which includes the Proceeds of Crime Act and the Criminal

Assets Bureau Act. It will examine the nature of these pieces of legalisation and how they

have impacted on a person’s individual due process rights in case law.

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Chapter 1

The Dichotomy between Civil Law and Criminal Law and the

Emergence of a ‘Middleground’ of Justice

The differences between civil law and criminal law are based on the main objectives of legal

action, redress and punishment. When a person is harmed by another, whether it is through

physical assault or through malpractice, that person is entitled to two fundamental responses

in order to remedy his/her situation. These responses are taken through either criminal

sanctions and/or civil remedies10

. This has be affirmed in the US Supreme Court ruling in

Hicks v Feicock11

, where it was noted that there was a clear dividing line between civil law

and criminal law where criminal law is to punish the offender, while civil law is meant to

compensate the victim.

Criminal conduct is considered to be conduct that is forbidden by the State. LaFave notes, in

order for conduct to be considered criminal, it must fulfil several basic principles. Firstly, the

physical conduct and the defendant’s mental state must concur. Secondly, the court must

address the question of whether the results of the conduct undertaken has damaged public

interest and endangered the security of the individual or the state. Thirdly, a person who has

engaged in criminal conduct will be liable to a prescribed punishment by the courts.12

.

In contrast to criminal law, civil law focuses on the legal relations between individual actors.

In civil law, there is equality between the parties i.e. legal subjects are free to enter into the

legal relations of their choice and have the power to influence the contents of their relation,

their rights and their obligations. Where agreements are broken between parties the state can

arrange sanctions to do justice to the injured party through restitution, and the awarding of

damages13

.

The paradigms between these two systems of law shape the legal profession with respect to

issues such as how lawyers choose to specialise in different areas of law, how procedural

rules are divided between both criminal law and civil law, and the division of judicial

authority in civil and criminal matters amongst the courts14

.

Despite the clear distinction of functions it is being submitted there is a new middleground

emerging where criminal objectives are being achieved through civil actions through the use

10 Kenneth Mann ‘Punitive Civil Sanctions: the Middle Ground between Criminal Law and Civil Law’ (1992) Yale Law Journal, Vol. 101. No.8 p1785-1873.

11 Hicks v Feicock [1998] US. 624.

12 Wayne R. LaFave ‘Criminal Law Third Edition’ (Hornbook Series, Student Edition: West Group 2000)

13 Gábor Péter Palásti ‘Lecture Notes on the Introduction to private/civil law’ RGSL Research Papers No.5. 2011

http://www.rgsl.edu.lv/images/stories/publications/5_palasti_final.pdf 14

Mann, (1992), p1797.

10

of ‘punitive sanctions. The purpose of these ‘punitive sanctions are to punish, even though

the legal action is civil15

.

This chapter will examine the major differences and objectives of civil and criminal law and

how the two paradigms of law are now converging to create a ‘middleground’ where criminal

law objectives are now being achieved in the civil forum.

The Criminal/Civil Law dichotomy In examining the criminal/civil law dichotomy, we are referring to the so-called

public/private law dichotomy, i.e. the two kinds of legal relationships between legal actors.

One relationship is where individuals can enter into legal agreements with other individuals

of their choosing and have the power to influence this relationship. This legal relationship is

found in private/civil law. In contrast the other legal relationship where one of the parties is

subordinate to the other. This is commonly seen in areas of law where the State requires

individual to act in a certain way in order to maintain order and peace in society. The nature

of these legal relationships refers to public/criminal law.16

There have been some practical and conceptual concerns with regard to the separation of

criminal and civil law. These where first set out by Lord Mansfield in 1776 in Actheson v

Eveirett17

. He noted that ‘there is no distinction better known than the distinction between

criminal law and civil law’. Civil and criminal laws are both part of the sanctioning process.

However the term sanction does not refer to imposing punishment but rather to determine

ways to limit and restrain behaviour. Hence, this has led to the creation of a distinction

between criminal laws where the resolution of criminal law is seen as a penalty and in civil

law where the resolution is seen as a remedy18

.

Criminal Law Criminal law is law for the purposes of preventing harm to society. In this legal sphere,

certain conduct is declared criminal and a punishment is prescribed that is to be imposed for

such conduct. When referring to the term ‘conduct’ LaFave uses it to cover two distinct

matters. The first matter is the act, or series of acts, known as actus reus that are required to

commit a criminal violation or the omission of an individual to act to prevent a criminal

violation where there is a duty to act. These acts may include physical activity such as the

intentional pushing of a knife into the body of another individual, or acts such as an

individual drawing social welfare while in fact the individual is in full time employment19

.

The second matter is the state of mind that the individual has when a criminal act or omission

to act occurs, or otherwise means rea. No crime can be committed by bad thoughts alone. To

wish a person dead or to contemplate the assault on a woman does not constitute a criminal

15

Ibid. 16

Paisití, (2011) p3-4 17

98 Eng. Rep. 1142, 1147(27 K.B. 1775). 18

Mann, (1992). P1803. 19

LaFave (2000), p 7.

11

act as long as the thoughts produce no action to bring about the result. Thoughts must be

distinguished from actions, such as the pulling of a trigger. Criminal actions may even extend

to the making of verbal threats to harm, kill or commit illegal acts. Also a person can be

considered to be guilty of a crime if he encourages, commands or hires another person to

commit the crime, where the conduct includes no other bodily movement other than

speaking20

.

However if a person does not intend for an action to occur the conduct can become less

culpable. A simple error causing little harm is normally regarded as trivial but an error that

causes great harm will be condemned by the public. i.e. an error made by a doctor, pilot or

police officer which results in the death or serious injury of another person he/she is

responsible for will have dire consequences for that person in a position of responsibility. In

assessing the punishment that the individual should receive, the courts must look at the wrong

the person has committed, the thoughts of the person while he was committing his crime, and

the consequences of the actions of that person. Sentencing may vary from life imprisonment

to community service or mandatory counselling21

.

Another aspect of criminal proceeding is the mental capacity of the accused to commit

crimes. There is a presumption that children under the age of twelve are not capable of

committing a crime22

.

In criminal proceedings there are a number of powers afforded to State authorities that are not

available to individuals who are involved in legal relationships. These include the powers of

arrest, detention and powers of entry, search and seizure. In order to protect the rights of the

accused, these intrusive investigative powers are counter balanced by rules of evidence at the

trial stages, which are much more restrictive than rules of evidence in civil law23

.

In addition there are several defences that accused persons may use to waive criminal

responsibility that are not applicable in civil law. Some of these include a plea of insanity

which the person considered criminal will seek an exemption from criminal liability based on

the absence of a mens rea while the purpose of the defence is diminished. In Ireland the

presence of a mental disorder has three requirements in order for the courts to accept the

defence of insanity. First the person must not know the nature of the act, the person must not

know that what he/she was wrong and the person was unable to refrain from committing that

act2425

.

Other defences against criminal liability include intoxication, which unlike insanity occurs

voluntarily. This is also relevant where the defendant can prove that he acted under the

20

Ibid, pp206-207. 21

Peter Charleton, P.A. McDermott and M. Bolger ‘Criminal Law’ (1999) Dublin: Butterworths, pp15-19 22

Brian Doolan ‘Principles of Irish Law, 6th

Edition,’ Dublin: Gill and McMillan, p134 23

Colin King ‘Using Civil Law processes in Pursuit of Criminal Law Objectives: A Case Study based on Non-Conviction based Asset Forfeiture [2012] 16[4] International Journal of Evidence and Proof 337, p2 24

Section 5(1) b Mental Health Act 2001. 25

Taitiona V. Kelly ‘Defense of Insanity in Ireland: Present Law and its application to Psycopaths (2012) Vol. 4 No. 6.

12

coercion of another. This is seen in DPP v Murray where the defendant pleaded that she

killed an individual under the coercion of her husband. The Non-Fatal Offences against The

Person Act 1997 provides that reasonable force may be used by an individual where he/she is

acting in self-defence to protect himself or his property. Finally where a person has

diplomatic immunity under international law, foreign dignitaries and their families are

immune from criminal prosecution when committed in a State they are visiting as part of a

diplomatic mission26

.

Civil Law In contrast to criminal law, which is primarily focused on the State punishing the individual,

civil law or private law regulates legal relationships in practically all modern societies based

on the theory of equality before the law. Its purpose is to provide restitution or compensation

to a wronged party. In civil law, parties are free to act in their own interests as private

individuals27

.The purpose of civil law is the orderly resolution of disputes between these

individuals. It provides a remedy, usually a financial remedy, to the wronged party against

the wrongdoer. Hence in private/civil law the main aim is the compensation of the aggrieved

party rather than the punishment of the offender28

.

Civil Law depends principally on the notion of objective liability, where sanctions are

imposed on an individual where there is a failure of the individual to live up to the standard

of conduct agreed in the legal contract29

. This refers to the actions or behaviour of the

individual that caused to determined event, where, in absence of such actions or behaviour

the event would have never occurred30

.

Civil law sanctions do not carry with them the same social stigma as does a criminal

conviction. Most sanctions in civil/private law are monetary in nature, in which case the party

in breach of the law has to pay a certain amount of money as compensation to the injured

party. There are several types of monetary sanctions. These include restitution, where the

party in breach of the law has to pay the amount of money that the injured party has lost as a

result of the actions of the party in breach. Other remedies include returning enrichment,

where the breaching party has to return the profits it has gained from the breach.

The ‘queen of all civil sanctions are ‘damages’, where the amount to be paid to the injured

party is not just the actual damages that been incurred but for the lost profit and all costs in

relation to the damage also.31

26

Doolan, (2003), pp134-135. 27

Paistí (2011),pp6-7. 28

ibid 29

Mann, (1992), p 1805. 30

Herbert Gschopf ‘Liability in tort or objective liability in winter sports. ‘Report on the occasion of the European Forum on Snow’ (2007)< http://bormioforumneve.eu/relazioni_inglese/gb_GSCHoPF.pdf> (accessed 21/05/2014). 31

Paisití, (2011), p9.

13

Finally, in civil proceedings, the burden of proof is on the plaintiff is that of the balance of

probabilities, where the plaintiff must satisfy the court that his case is based on the truth. The

higher standard of ‘proof beyond all reasonable doubt’ that appears in criminal proceedings

does not apply in this case. These high standards of proceedings are implemented due to the

fact that criminal proceeding must guard against the possibility of wrongful convictions for

which the consequences of such convictions are far more detrimental to the individual32

.

Hence, as noted in Helvering v Mitchell, it was noted that unlike criminal law, civil law ‘is

incompatible with accepted rules and guaranties that are prescribed for the enforcement of

remedial sanctions…there is no burden of proof upon the government to prove a case beyond

reasonable doubt33

’

The establishment of a ‘middle ground’ of punitive civil sanctions The view that civil law may only be used to resolve problem between citizens and that

criminal law may only be used to respond to illegal acts committed against society has been

eroded.34

This shift in views has allowed the State to circumvent the criminal process to

impose criminal punishments using the use of punitive civil sanctions.

The use of civil proceedings to achieve criminal law objectives is closely connected to the

perceived ineffectiveness of the criminal law system35

. This is done through the use of Anti-

Social Behaviour Orders, Crime Prevention and Control Orders to address low-level

criminality. In the case of addressing large-scale organised crime, the use of civil procedures

within criminal law is illustrated through the use of civil forfeiture legalisation which puts an

onus on the accused to provide evidence that his/her property has not been acquired through

the use of the proceeds of crime. Failure to do so will result in the assets being forfeited to the

State36

.

The use of civil remedies to address criminal behaviour has created a ‘middleground system

of justice’ where the State can respond to criminal activity by punishing the offender, not

through the deprivation of liberty, but rather through monetary fines. The establishment of

this middleground has created concerns that the use of punitive civil sanctions is merely a

cost effective form of criminal administration that allows the State to bypass the safeguards

of criminal law, such as criminal guilt, presumption of innocence, proof beyond reasonable

doubt, and proportionality to offence seriousness37

. Finn and O Brien note that civil remedies

can be easier to implement rather than full criminal prosecutions. It has reduced the

dependence on eyewitnesses in the prosecution of major criminals, many of whom do not

wish to testify out of fear for their own safety. Lawyers and police agencies save a significant

amount of time through the use of civil actions as an alternative to criminal trials if a civil

32

Colin King ‘The Confiscation of Criminal Assets: Tackling Organised Crime through a ‘Middleground of Justice’ (2010)a University of Limerick School of Law p64. 33

Ibid. 34

Peter Finn, Mara O’Brien ‘Using Civil Remedies for Criminal Behaviour: Rationale, Case Studies and Constitutional issues. (1994) US Department of Justice. 35

Barry Vaughan, Shane Kilcommins ‘Terrorism, Rights and the Rule of Law: Negotiating Justice in Ireland’ (2008) Devon, Willan Publishing. 36

King, (2010), p3. 37

Vaughan, Kilcommins (2008), p136).

14

action can resolve the issue without delay. Through the use of punitive civil sanctions, police

and prosecutors can dismantle the criminal organisations as well as incarcerating the

individuals involved in the criminal activity. Finally the money collected from the use of

punitive civil sanctions can be used by the state to address social issues that many

communities face as a result of criminal activity which can severely damage a person’s

quality of life38

.

Conclusion The middleground system of justice draws on the principles of both civil law and criminal

law. It attempts to utilise civil law in order to achieve criminal law objectives to punish

individuals who are known to the authorities to be engaged in criminal activity. Under the

criminal law certain conduct is declared illegal and prohibited by the State. When a person

engages in such illegal activity the State has a right to arrest, detain and punish that person

accordingly. In contrast the civil law deals with mainly issues that arise between private

individuals and are usually resolved through the imposition of a monetary fine on the

wrongdoer. Unlike criminal law, civil law does not impose criminal sanctions on the

individual but does require them to pay a fine if one party is found to be in the wrong.

In recent years, State authorities worldwide have begun to impose civil sanctions on the

persons who are suspected of committing criminal activity. This has led to the establishment

of a ‘middleground system of justice’ where criminal objectives are achieved in the civil

process. In Ireland in particular, the emergence of serious criminal activity in the 1990s posed

a direct threat to the security of the State, leading the government of the day to adopt civil

forfeiture measure in order to seize the assets of criminal. This will be addressed in detail in

the next chapter.

38

Finn, O Brien (1994), p5.

15

Chapter 2

The Growth of crime in Ireland

Introduction In Europe the term organised crime has been used to describe the professional criminals who

have distinguished themselves by the proficient and business-like way in which they commit

certain crimes. While the various types of offences being committed have remained

unchanged such as drug and human trafficking, copyright infringement, the counterfeiting of

intellectual property, illegal gambling, kidnapping and prostitution, criminal networks have

adapted to changes in technology and have become more networked than ever before. They

often display detailed awareness of law enforcement methods and therefore use sophisticated

counter-measures to prevent police forces from bringing them to justice39

.

Ireland in particular, the increasing rates of drug addiction has translated into a growth in

violent crime and has resulted in the breaking of the taboos against victimising the

vulnerable. Since the early 1980s there has been an increase in the number of gangland

killings and despite the three decades of considerable attention from politicians, the media

and the police, there does not appear to be a decrease in the number of killings that occur on a

yearly basis40

. Sociologist Ian O Donnell has stated that the organisation of the illegal drug

trade and also the increase in dissident republican activity during the period of ‘The Troubles’

in Northern Ireland are the main contributing factors toward this increase in gangland

activity.

Even today, Irish organised crime gangs continue to forge and develop links to international

criminal organisations in countries such as Holland, Spain and in particular Great Britain and

also Chinese and Eastern European criminal networks have been observed as they work

together in various illegal ventures41

.

This chapter will conduct an examination of the development of organised crime in Ireland

and how it has resulted in the Irish government needing to develop methods to target criminal

gangs using methods beyond the standard criminal justice procedures. There will be

particular reference to the reasons for the establishment of civil forfeiture in Ireland.

Social factors that led to the rise of crime in Ireland Ireland’s dramatic rise in crime levels from the 1960s was evident during the industrialisation

of the Irish economy. During the second half of the twentieth century, Ireland began the

transition from an agricultural based economy toward an industrialised Fordist society, and

39

Home Office ‘One Step Ahead: A 21st

Century Strategy to Defeat Organised Crime’ (2004) (Norwich Crown Copyright) 40

Sadhbh Byrne ‘Irish Organised Crime and the Motivation behind Gangland Killings Student Psychology Journal 41

ibid

16

by the end of the century a post-Fordist society42

’. This had resulted in an increase in the

population in urban areas, and subsequently a decrease in the population in rural areas. As a

result of this, local governments faced challenges brought about by social segregation based

on economic and social perspectives within urban areas43

.

Within urban areas, a lack of social fluidity was most visible where there was

intergenerational poverty that is concentrated in deprived neighbourhoods44

. In particular the

decline of community organisations in these areas was a significant blow to these areas.

During the 1980s the departure of many affluent families who had asserted dominance of law

and order on the streets as a result of a ‘tenant purchase scheme’, where the Irish

governments instituted a tenancy surrender scheme in order to free up local authority

housing. Affluent tenants where offered up to £5000 in a grant to surrender their dwelling and

move to accommodation in the private sector. As a result the proportion of people left behind

in these areas had a much higher proportion of unemployed and single parent households.

Many disadvantaged young people began to take part in substance abuse, resulting in an

increase in armed robberies and burglaries, vandalism etc. Gradually the political vacuum left

behind by the affluent families was filled by criminal organisations run by families

specialising in the selling of narcotics, arms dealing, and protection rackets etc.45

On examination of criminal trends during this period from 1973 to 1995, it can be noted that

the number of indictable offences trebled from 37,781 to 102,48446

. In this context, the crime

problem can be considered to be an issue of grave concern. Opinion polls demonstrate the

high levels of fear and pessimism surrounding crime in Irish society. In November 1996, an

overwhelming majority of the Irish public backed a referendum which sought to change bail

law in Ireland which permitted the denial of bail to individuals accused of certain offences47

.

It is argued that one of the reasons for this increase in criminal activity was the result of the

ongoing connection between drugs and crime. Murphy notes that the prohibition of illegal

psychoactive drugs such as cocaine, cannabis and heroin which are considered by society to

be ‘evil’ substances and argue that the current methods of drug enforcement, ‘ensures that we

are not engulfed by evil’. With the use and sometimes abuse of these prohibited substances,

comes the risk of addiction and overdose leading to serious injury or death. Additionally

80% of crime is connected with drug addiction. From 1973 over a period of 20 years, armed

robbery has increased by more than four times and burglary increased by more than six times.

42 Whelan, C.T, Layte, R. (2004) ‘Economic Boom and Social Mobility: The Irish Experience’(online) available, http://www.esri.ie/pdf/WP154%20Economic%20Boom%20and%20Social%20Mobility.pdf [accessed, 10 October 2012) 43 Colantonio, A. Dixon T, (2009) ‘Urban Regeneration and Social Sustainability: Best Practice from European Cities’, Oxford: Wiley Blackwater

44 McCafferty D, O Keefe, B. (2009) ‘Facing the Challenge of Change: A spatial perspective on Limerick’ (online) available, http://www.limerickcity.ie/Publications/ [accessed 1 September 2012). 45

Niamh Hourigan ‘A History of Social Exclusion in Limerick’ in Niamh Hourigan (eds) ‘Understanding Limerick: Social Exclusion and Change. (2011) Cork: Cork University Press. 46

O Connell M. The Portrayal of Crime in the Media-Does it matter> in Paul O Mahoney (eds) ‘Criminal Justice in Ireland’ (2002), Institute of Public Administration, p245. 47

ibid

17

A 1981 survey conducted by Paul O Mahoney indicated that a vast amount of drug users

commit crime on a daily basis on order to finance their drug habit48

.

However Charleton argues that while the drug abuse does indeed cause crime, the real cause

of crime is not the ‘drugs’, but rather the state prohibition on drugs. These drugs, while they

are illegal are in high demand and are made expensive by the war on drugs and the various

forms of property crimes that are created as a result of this. These drugs are often the cause of

criminal activity associated with drug gangs and the infamous ‘drug barons49

’.

Impact of the Troubles The conflict in Northern Ireland from the 1960s to the 1990s (known as the ‘Troubles’) has

impacted on crime in the Republic in a variety of ways. Paramilitary organisations carried out

‘fundraising operations’ in the Republic of Ireland and conducted crimes such as armed

robberies, ‘tiger kidnappings’ and VAT fraud. Throughout the conflict, certain dissident

groups had established business relationships with various ‘apolitical’ criminal organisations.

The National Crime Forum has noted the implications of this to be that more guns have

become available to apolitical criminals resulting in increasing levels of gun crime in Irish

Society. Criminal Gangs have also used the skills and superior weapons of terrorist groups on

occasion. During the Troubles, while the Irish security services were preoccupied with

combatting terrorist activity, the conditions were created where organised crime could thrive

in Southern Ireland and this allowed for the emergence of a drug culture could take root

without focused opposition50

.

In particular the every sector of crime in Ireland is involved in businesses that is run on a

spectrum of organisation. Through the use of fear and intimidation of local residents in

disadvantaged areas, criminal gangs have established an industry based on the illegal drug

trade, where profits are significant and relatively ‘recession proof’ and where violence and

conflict around market control is endemic51

. These criminal gangs, therefore, are in essence

businesses motivated by profit. However theses profits can be considered to be illegally

obtained funds and are required to undergo a process, known as money laundering in order to

appear legitimately obtained and usable.

Money Laundering Unlike ‘clean money’ which is money untainted by criminal association, ‘dirty money’, or

money earned as a result of criminal activity can only be invested or spent less profitably and

at the risk of criminal prosecution. Aside from petty cash robberies, the source of all income

from criminal activity must be disguised to be of any use52

. Defined as ‘the process where

illegally obtained funds are given the appearance of being legitimately obtained’, money

laundering is associated with organised crime activities including extortion, kidnappings,

48

Peter Charleton ‘Drugs and Crime-Making the Connection@ A Discussion Paper’ (1995) 5(2) ICLJ 220. 49

ibid 50

Aogón Mulcahy ‘The Impact of the Northern Troubles’ in the Irish Republic’ in Paul O Mahoney (eds) ‘Criminal Justice in Ireland’ (2002), Institute of Public Administration, p245. 51

Ciaran McCullagh ‘Getting a Fix on Crime in Limerick’ in Niamh Hourigan (eds) ‘Understanding Limerick: Social Exclusion and Change. (2011) Cork: Cork University Press. 52

Michael Ashe ‘Anti-Money Laundering: Risks, Compliance and Governance’ (2013), Dublin: Round Hall.

18

drug trafficking, arms smuggling and white collar crime. Money laundering is carried out in

three phases. The first phase in known as placement, where the illegal funds are placed in

small sums, into financial institutions through deposits, wire transfers and other means. Once

this stage is complete, it is then necessary to make the funds more convenient to use and

reduce the possibility of detection. This is known as the layering phase. Through the use of

multiple bank accounts, having professionals act as intermediaries and using the money

through small ‘front businesses’, money may be shipped through a web of accounts,

companies and countries in order to disguise its origins. Once the layering phase is complete

and the money has been distanced from its origins it becomes available to be used by

criminals and criminals can place those funds back into the economy. This phase is known as

integration, where the illegal funds can resemble legally generated wealth and can be invested

in further criminal activity53

.

Responses to criminal activity by the Irish State In recent times, a shift has occurred in the Irish Criminal Justice System from Packers Due

Process Model, where the aim of the criminal process is to protect the innocent and prosecute

the guilty, towards to the Crime Control Model which sees the suppression of crime as the

most significant function of the criminal process. In the Crime Control Model, efficiency is

considered to be the main objective, with both rules and resources directed primarily at

maintaining high rates of arrests and convictions. This is unlike the Due Process model,

which is based on a much greater level of scepticism about the fact-finding process,

particularly those processes preceding the trial itself. Emphasis has shifted from protecting

the rights of the suspect to ensuring that the guilty get punished54

. In the past 20 years major

criminal enactments and criminal procedures have been enacted which have resulted in

radical changes in the justice system. This legislative activity can be attributed to the

concerns of the public has resulted in a substantial increase in police powers of stop, search

and question, entry, search and seizure and also inroads into the right to silence and the

dilution of the right to bail. It can also be attributed to the increase in international law that is

being driven by developments outside the State due to legislation from the European Union

which is binding on Ireland. Finally Walsh notes that the heavy emphasis on Due Process

values that puts an obligation on the State to prove the guilt of an individual and present a

prima facie case against the suspect is being eroded. This has been replaced with a model

where the State can coerce a greater degree of cooperation from an individual both directly

and indirectly into the investigation of his or her own guilt. While this shift may not amount

to a complete change to the Crime Control Model of criminal justice, Walsh notes that it does

represent a significant departure from Packers Due Process model55

.

As a result in the shift in attitudes toward the criminal process in Ireland, Meade observes

that criminal law reform since the 1990s has “the potential to affect the life and liberty of all.

53

Hasmet Sarigul ‘Money Laundering and the Abuse of the Financial System’ International Journal of Business and Management Studies Vol 2(1), pp287-301 (2013). 54

Thomas O Malley ‘The Criminal Process’ (2009) Dublin: Round Hall. 55

Dermot Walsh “Criminal Procedure” (Dublin, Clarius Press) ppx-xii.

19

Citizens and reform should not be undertaken to answer a problem perceived to exist in a

time of panic or emotional distress”56

.

Reform of the criminal justice system now seeks to address the ‘scourge of gangland crime’

by embarking on a “drug war against the so called drug barons who live in big houses have

expensive lifestyles and cannot be touched by the State forces of law and order”.

The capabilities of the State in relation to arrest and detention Section 4 of the Criminal Justice Act (1984) permits detention and interrogation without

warrant for up to 12 hours. Section 9 of the Criminal Justice Act (1984) extends the

maximum period of detention by an additional 24 hours for offences punishable by up to five

years or more imprisonment. Also, secstion 2 of the Drug Trafficking Act 1996 permits

detention for up to 168 hours for suspected drug trafficking offences. Finally Section 50 of

the Criminal Justice Act 2007 provides for a 7 day detention for persons who are accused of

murder using a firearm or an explosive, the murder of a Garda, Prison Officer or head of

State57

.

The state has also taken measures against the activity of terrorists. The principle provisions

for dealing with these types of offences are to be found in the Offences against the State Act

1939-1998. The main objective of the Acts is to establish the focus of an unlawful

organisation. Section 3 of the Act permits that the opinion of a Garda officer at the rank of

Chief Superintendent can be treated as evidence that a person is a member of an unlawful

organisation58

.

The Right to Silence The State has also made inroads into the right to silence. Section 52 of the Offences against

the State Act has noted that inferences may be drawn from failure to answers questions,

failure to account for movements, or failure to mention facts relied on by the accused for his

defence. However, as a result of the Heaney Case59

section 52 was considered to be in

violation of Article 6(1) ECHR and was deemed to be invalid and was impugned. However

the Courts have accepted in Rock v Ireland60

that the right to silence does not preclude the

taking of adverse inferences about the suspects guilt from their refusal to answer Garda

questions while in custody as long as those questions do not infringe the constitutional rights

provided for in Article 38.161

.

56

J. Meade, ‘Organised Crime, Moral Panic and Law Reform: the Irish Adoption of Civil Forfeiture’ [2000] I.C.L.J. 11, 15 57Liz Campbell. "From Due Process to Crime Control: The Decline of Liberalism in the Irish Criminal Justice System" Irish Law Times 25 (2007): 281-288. 58James Hamliton ‘The interplay between EU and domestic counter-terrorism laws’ ERA-ICEL Seminar, Dublin, 2 November 2007 59 Michael Farrell “ The Criminal Justice Bill 2007 and the implications for Law and Practice: The Right to Silence and the Criminal Justice Bill 2007” School of Law Trinity College Dublin Free Legal Advice Centres (2007)

60 [1999] I IR 145 61

Walsh (2009) 128

20

Anti-Money Laundering legalisation Anti-money laundering legalisation was first introduced in Ireland b the Criminal Justice

(Money Laundering) Act 1994. This ambitious piece of legalisation introduced the offence of

money laundering, for the first time in the Republic of Ireland62

. The offences under the Act

are concerned with the concealing or disguising of property affiliated with criminal activity.

The Act also imposes an obligation on financial institutions to identify persons whom they

suspect to be committing money laundering offences. They must identify the persons with

whom they have financial transactions. Similarly, the institutions must keep copies of

relevant transactions with their customers.

The Act also introduced procedures where the trial court can, on application to the DPP,

investigate the profits of a person convicted of drug trafficking or any other criminal

offences, including offences of which he has not yet been convicted of. Where the court is

satisfied, it can make a confiscating order which has the same effect as a judgement of the

High Court for the payment to the State for the sum of money specified in the order. If the

sum of money fails to be paid, the DPP ma apply to the High Court to have the defendant

imprisoned in default of payment for a period dependent of the sum of money owed i.e. For

funds not exceeding €500, the defendant is to be imprisoned for 45 days. If the sum is

significantly higher, for offences exceeding €1 million, the defendant faces up to 10 years

imprisonment63

.

One of the key features of the 1994 Money Laundering Act is that it is particularly concerned

with the seizure of “proceeds of criminal conduct”. This includes an property that is derived

or obtained either directly or indirectly through ‘criminal conduct’ which constitutes and

offence under Irish Law were it occurs in Ireland. It can be argued that this Act paved the

way for the introduction of civil forfeiture in Ireland and the use of punitive civil sanctions in

the Irish Criminal Justice System.

A Continuing threat Despite these legislative actions against organised crime, criminal gangs still present a threat

to the safety and well-being of the Irish public. Following the murders of Sunday

Independent Journalist Veronica Guerin and Detective Garda Jerry McCabe, the criminal

justice system came under considerable attack from members of the Irish Parliament, the

Press and the general Irish Public. The threat of organised crime came to the forefront of the

Government Political Agenda. Deputy Liz O Donnell summarised the feelings of the nation

in the aftermath of these murders.

62

Section 31 Criminal Justice (Money Laundering ) Act 1994. The Act introduced the offence of money laundering into Irish Law. It stipulates that a person commits an offence if he/she

(a) Conceals or disguises an property which is, or in whole or in art directly or indirectly represents the proceeds of drug trafficking or other criminal activity.

(b) Converts or transfers that report or removes it from the State for the purpose of avoiding prosecution for and offence or the making or enforcement in his case of a confiscation order.

63 Fachtna Murphy and Barry Galvin ‘Targeting the Financial Wealth of Criminals’ in Paul McCutcheon and

Dermot Walsh (eds) ‘The Confiscation of Criminal Assets: Law and Procedure (199

21

‘The assassinations of Veronica Guerin and Jerry McCabe have sent a message we ignore

at our peril. Namely that some people will stop at nothing. These ‘untouchables’ will claim

the right to a fair trial while intimidating those who would testify against them. The rob

banks and launder the proceeds of their crimes through the same institutions. The use the

same proceeds to buy the respect of the same communities they have devastated with drugs. It

is obvious that the criminal justice system has failed to stop these people and it is equally

obvious that we must radically amend the system to stop them. We have tried before and have

failed. This time we must get it right64

.

The threat of organised crime came to the forefront of the political agenda and the Oireachtas

was to take swift action on crime. A number of anti-crime measures were to be introduced

including the Disclosure of Information for Taxation and Other Purposes Act 1996, the

Proceeds of Crime Act 1996 and the Criminal Assets Bureau Act 1996. These measures

represented a radical change from a conventional criminal process involving the traditional

measures of investigation, arrest, charge and prosecution. This Anti-Crime Package allowed

for the civil law to be used within the criminal process. In particular the Acts focused on the

processes concerning the forfeiture of assets. As proceedings of this nature were civil in

nature, the enhanced protections inherent in criminal procedure were not present65

. The

nature of these Acts will be discussed in the next chapter.

Conclusion This chapter has conducted an examination of the nature of organised crime in Ireland. It has

examined the social and historical factors in which the development of organised crime been

allowed to flourish. It is clear that to a certain extent government policy in the late

1970s/early 1980s, particularly in the area of social housing have contributed to social

exclusion, resulting in the development of organised criminal gangs in these areas.

Additionally the conflict in Northern Ireland from the 1970s to the 1980s diverted the Irish

Governments attention away from the growing drug trade during this period.

Despite the legislative activity that has been introduced in recent years, in the summer of

1996, the issue of organised crime came to the forefront of the Irish Political Agenda

following 2 high profile murders led the state to adopt civil forfeiture legalisation. The next

chapter will examine the impact of this legalisation in the States fight against organised

crime.

64

Dail Eireann, Private Members Business: Motions Against Crime 2 July 1996 Vol 467 No.7. 65

Colin King ‘The Confiscation of Criminal Assets: Tackling Crime through a Middleground System of Justice (2010) University of Limerick.

22

Part 2 Part 1 examined the development of a middleground system of justice where civil law actions

are being used to achieve criminal law objectives. Chapter 2 than examined the issues of

organised crime in Ireland and the responses that the State have taken in combatting

organised crime in Ireland.

Part 2 will examine not only a clear example of the middleground system in practice through

the example of civil forfeiture. It will examine the definition of civil forfeiture and how it has

been used in the United States and the United Kingdom. Finally we will examine how civil

forfeiture has been used in Ireland to combat the threat of organised crime in Ireland.

23

Chapter 3

Civil forfeiture legalisation in the United Kingdom and the United

States As noted in Chapter 1, the establishment of a middleground of justice has led to an

emergence in the use of civil law by police forces in order to achieve criminal law objectives.

One of the key ways that they have done this is through the introduction of civil forfeiture

legislation.

Civil forfeiture is based on the idea that property itself can be ‘tainted’ with guilt when

involved in criminal acts. In recent years, particularly in the United States, Britain and

Ireland, civil forfeiture has been used by law enforcement agencies to curb drug trafficking

and the supply of illegal narcotics and is widely perceived as an effective deterrent against

criminal acts.

However, as they are not classified as criminal acts, civil forfeiture legalisation does not

contain the procedural safeguards that protect defendants in criminal trials66

. Despite the

benefits of civil forfeiture to law enforcement agencies, it raises many issues with regard to

the protection of due process. As noted in the US supreme court Alvarez, the doctrine of civil

forfeiture is a ‘legal juggernaut; which has severely undermined the privilege against self-

incrimination and other due process safeguards such as the prohibition of double jeopardy,

the right to trial by jury and the presumption of innocence67

.

The provisions provided for in civil forfeiture legalisation put a responsibility on the owner of

a property, who is suspected of committing criminal acts to prove, according to the civil

standard of proof the lawful means by which he/she acquired that property. If he/she cannot

or fails to do so, then the property can be forfeited to the state. The seizure of assets can occur

even if the person has not been convicted of a crime.

However it is the opinion of many scholars that civil forfeiture are not truly ‘civil’ in nature

since they are in fact ‘criminal’ in nature and the protections that apply to criminal

proceedings should also apply to civil forfeiture proceedings68

.

This chapter will examine the nature of civil forfeiture. It will examine its development in the

United States and in the United Kingdom and Internationally. It will also examine the issues

that are related to civil forfeiture and how it may erode a person’s rights.

Balance of Probabilities When criminals are apprehended by law enforcement agencies, they are considered innocent

until proven guilty in a court of their peers and are entitled to the constitutional rights to due

66

Jay. A. Rosenburg, ‘Constitutional Rights and Civil forfeiture Actions’ Columbia Law Review 1988 pp 390-406) 67

Tamara Piety, ‘Scorched Earth: How the expansion of civil forfeiture has laid waste to due process.’ (University of Miami Law Review, 911 1990-1991.) 68

Andy Davidson Gray ‘Forfeiture Condition and the Criminal/Civil Divide’ New Criminal Law Review Vol 15, No. 1) 2012.

24

process. Law enforcement agencies have been using civil asset forfeiture to great effect since

the 1960s. Civil forfeiture allows a court to restrain an individual from dealing with a

property or other asset where the court is satisfied that those assets have been acquired via the

proceeds of crime. It is an in rem action against the property itself, as opposed to an action

against a living person. Through this action, the State seeks to remedy the harm done by the

criminal act, with a view to restoring the status quo by attacking the ‘properties guilt’ and the

illegal activity that has taken place in order to acquire the property in question. Additionally

there is no requirement that the person be convicted of a criminal offence in order for a civil

forfeiture to take place as it is based on the civil law standard rule of ‘the balance of

probabilities’69

.

Simser notes that there are two rationales for civil forfeiture. The first rationale is that, gains

from unlawful activity should not be allowed to accumulate in the hands of criminals and

criminal organisations. It is argued that individuals who are involved in criminal activity

which have resulted in their ability to acquire expensive assets ought not to be accorded the

rights and privileges normally seen in conventional property law. The second rationale is that

the state, as a matter of policy should suppress the economic conditions that lead to criminal

activity70

.

Civil forfeiture in the United Kingdom Civil forfeiture is not a new concept in the United Kingdom. It traces its roots to medieval

England, where the notion of the ‘deodand’, meaning ‘to be given to god’. Under English

Common Law, the deodand was where a crime against the Crown could be punished by the

seizure of ones estate by the Kings, the Church or a Local Baron, for the good of the

community. The crown began to expand to concept of the deodand to include all property

belonging to criminals71

. All property that was used in acts that damaged the reputation of the

crown was to be considered to be ‘tainted with guilt’ and should be seized by the crown. This

principle was primarily used for the seizure of animals which had caused human death72

.

Modern civil forfeiture in the United Kingdom emerged in the early 2000s when the

government of the United Kingdom recognised that the profits from serious organised crime

where so great that the traditional deterrent of lengthy prison sentences were considered to be

insignificant as criminal realised that the gains from their activities would still be available to

them upon their release. Prior to 1986 there was no general power to deprive criminals of

their proceeds of crime aside from the limited forfeiture provisions in the Misuse of Drugs

Act 1971 and the Power of Criminal Courts Act 1973.

69

Colin King, ‘The Seizure of Illicit Assets: Patterns of Civil Forfeiture in Canada and Ireland’ 70 Jeremy Simser Perpestive on civil forfeiture’, in Simon M Young (eds.) Civil Forfeiture and Criminal Property Legal Measures for targeting the proceeds of crime (2009) Cheltenham: Edward Elgar

Publishing 71

Steven E. Schwarz and Alan E. Rothman ‘Civil Forfeiture: A Higher Forum of Commercial law?’ 62 Fordham

Law Review 287-320 (1993) 72

Ibid.

25

The weaknesses of these provisions were brought to light in R v Cuthberson73

. The

defendants were charged with and pleaded guilty to contravention of section 4 of the Misuse

of Drugs Act 197174

. Their assets from this criminal enterprise were ordered to be

surrendered under section 27(1) of the Act. The defendants appealed against the order which

was upheld by the House of Lords. They took the view that forfeiture provisions were for

offences ‘under the act’ and was confined to tangible things relating to the offence which the

person had been convicted of by the court making the forfeiture order. In this case in must

consist of the drugs involved, of the apparatus’ used in making them, the vehicles used for

transportation and the cash used in the transaction. It should not extend to the assets or profits

created as a result of the activity. As a result of the decision major reform had to take place to

deprive criminal of their gains achieved through unlawful activity.

The first milestone towards this was the introduction of the Drug Trafficking Act of 1986,

later amended in 199475

. The Act imposes a mandatory obligation on the court to confiscate

the proceeds of drug trafficking offences following the conviction on an individual for drugs

related offences. Following conviction, the crown court is allowed to assume that all assets

acquired in the six years prior to the commencement of criminal proceedings are the proceeds

of the criminal activity undertaken. Additionally the prosecution has the power to require the

defendant to disclose information as to the source of his assets. If the court decides that the

defendant has benefited from drug trafficking, it is obliged to make confiscation orders for

the proceeds of crime76

.

Confiscation was then extended to non-drug related offences in the Criminal Justice Act

1988. Measures were introduced giving power to police and customs officers to conduct an

‘investigation into whether any person has benefited from any criminal conduct or into the

extent or whereabouts of the proceeds of criminal conduct. Unlike the Drug Trafficking Act,

73

[1980] 2 Al E.R. 401. 74

Restriction of production and supply of controlled drugs.

(1)Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person— (a)to produce a controlled drug; or (b)to supply or offer to supply a controlled drug to another.

(2)Subject to section 28 of this Act, it is an offence for a person—

(a)to produce a controlled drug in contravention of subsection (1) above; or (b)to be concerned in the production of such a drug in contravention of that subsection by another.

(3)Subject to section 28 of this Act, it is an offence for a person—

(a)to supply or offer to supply a controlled drug to another in contravention of subsection (1) above; or (b)to be concerned in the supplying of such a drug to another in contravention of that subsection; or

75

Detective Sergeant Chris Cole ‘British legislative development on the confiscation of criminal assets’ in J. Paul MCutcheon and Dermot P.J.Walsh (eds) ‘The confiscation of criminal assets: law and Procedure’. Dublin : Round Hall Sweet & Maxwell 1999 76 Angela V.M. Long ‘Asset Recovery under the Proceeds of Crime Act 2002: the UK experience, in Simon M. Young ‘Civil Forfeiture and Criminal Property: legal measures for targeting the proceeds of crime’. Cheltenham: Edward Elgar Publishing

26

many of the offences covered in the 1988 Act cover areas that are not related to the narcotics

trade, and where the victims are easily identifiable77

.

In following example of by the Irish authorities in the mid-1990s, the United Kingdom began

to make plans to introduce civil forfeiture legislation along the lines of the Irish Proceeds of

Crime Act 1996 and the Criminal Assets Bureau Act 1996. In the Recovering Proceeds of

Crime Report of June 2000 the UK Government was urged to take immediate action to

provide for the confiscation of assets that built on what the UK government had already in

place. In 2002, the UK government passed the Proceeds of Crime Act which provided a

consolidation of the existing laws on asset confiscation and money laundering into a single

piece of legislation78

.

Proceeds of Crime Act 2002 The enactment of the Proceeds of Crime Act 2002 (POCA) now provides the Crown Court

with powers of confiscation of criminal assets. Under the Act of 2002, a new Asset Recovery

Agency was formed with responsibility for asset recovery across the UK. It set out provisions

for the search, seizure forfeiture of cash and other assets in the English, Welsh, Scottish and

Northern Irish legal systems79

.

Part 8 of the POCA applications can be made to the court by law enforcement agencies for

the purpose of criminal confiscation. These include:

Production orders Under section 345 POCA, a production order requires a person in possession or control of

material, to produce an asset forfeiture order80

Search and Seizure Warrants, Section 352 POCA, an appropriate officer is permitted to enter and search the specified

premises and to seize any material that is likely to contain information which will benefit the

investigation. A warrant may be issued where a production order has not been complied with

and there are reasonable grounds to suspect that material lies in the premises in question.

Addition a warrant can be granted where it would not be practical to communicate with any

person against whom a production order is made81

.

Customer Information Orders and Account Monitoring Orders Customer Information Order, under section 363 POCA allow a senior constable, or customs

officer to request the court to make an order in writing, to any financial institution to provide

77

Cole, 1999 p66. 78

Cabinet Office ‘Recovering the Proceeds of Crime: A performance and Innovation Unit report (June 2000) (online) available:http://webarchive.nationalarchives.gov.uk/+/http:/www.cabinetoffice.gov.uk/media/cabinetoffice/strategy/assets/crime.pdf (accessed15/06/2014). 79

Kennedy (2006), p1. 80

Section 345 Proceeds of Crime Act 2002 81

Asset Recovery Knowledge Center ‘United Kingdom Country Profile Asset Recovery Mechanisms (online) available:http://www.assetrecovery.org/kc/node/14676c6e-abd8-11dc-ad0c-e9a31c7f1d1a.0;jsessionid=49B69DFEDAD7B213AF7E3FB4AA266533 (accessed 18/06/14)

27

any customer information requested. Customer information includes details about the

person’s full name and date of birth, address, date of opening and closing bank accounts.

Account monitoring orders, like customer information orders, allow police to monitor

transactions in an account for a period of 30 days under section 370 POCA.

Part 8 also provides for the seizure and forfeiture of cash which represents the proceeds of

drug trafficking. Under section 294 a customs officer or constable may seize cash where he

has reason to believe that the cash is intended for, or the proceeds of illicit activity. Cash can

be held for an initial period of 48 hours. A magistrate may then make an order if he is

satisfied that continued detention is required for the investigation of its origins or its intended

use. Where the detention is ruled not to be justified the court can order the release of the

funds. Under section 300 POCA, where the court rules that the detention is justified the court

can order the forfeiture of the cash82

.

Civil recovery proceedings Part 6 of the POCA introduced the concept of the forfeiture of criminally derived assets for

the first time in UK law. In order to make a case for civil recovery it is not necessary for the

law enforcement agency to establish that property was derived from a specific criminal

offence. They need only establish that the property in question was derived from one or more

types of conduct which are constitutes as a criminal offence83

. This is intended to address

concerns regarding where it is clear that the defendants assets are derived from systematic

criminality but where it is not possible to prove conclusively which assets where derived

from criminal offences.

The Assets Recovery Agency (ARA), the agency established to oversee the implementation

of civil forfeiture in Britain has several objectives.

1) To disrupt organised criminal groups through the recovery of assets, thereby

alleviating the effects of crime of communities.

2) To promote the use of financial investigation as part of the criminal investigation both

within the ARA and in local law enforcement, through training and development.

3) To use powers of taxation where the Director of the ARA has reasonable grounds to

suspect that there is income, gains or profits that are chargeable to the relevant tax

which results from criminal conduct. The Director than carries out the tax functions

the British Revenue Commissioners would normally carry out84

.

Additionally, it has been have noted that the civil forfeiture proceedings in the UK have

yielded fewer results than expected. Out if £15 million seized in the United Kingdom from

2004-2005, only £5 million of those funds were forfeited to the State. Additionally, legal

proceedings are lengthy and have encountered many legal challenges. There have been

concerns with regard to the civil nature of forfeiture proceedings, such as the lack of the

82

Ibid. 83

POCA s.242. 84

ibid

28

presumption of innocence and the double jeopardy rule. Respondents have raised concerns

that civil forfeiture proceedings should be criminal and not civil, which would trigger the

protections held within Article 585

and Article 686

of the European Convention of Human

Rights. The courts have dismissed these concerns, noting in Walsh v the Director of the ARA

and R v Belton, that civil forfeiture is intended to recover property obtained through unlawful

conduct and not the penalise any person and does not trigger protections guaranteed by

criminal law87

.

Furthermore the Home Office was careful to consider Human Rights Protections when

drafting the Proceeds of Crime Act 2002. In attempting to strike the correct balance between

the rights of an individual to enjoy property and the right of society to reclaim assets, the

Home Office instituted an number of safeguards in the legalisation. These include:

proceedings are not permitted unless the assets which are to be subject to a recovery order are

not less than £10,000 to ensure that the burden of proof remains with the state and proceeding

involve property and assets with a High amount of value. Additionally the Act ensures that

respondents have legal representation throughout the forfeiture process88

.

Civil forfeiture in the United States Civil forfeiture law in the United States is as old as the country itself. In 1789, the first

Congress of the United States first introduced civil asset forfeiture, by authorizing seizure and

forfeiture of ships and cargos involved in customs offenses89

During the American Civil War, the Federal Government began to confiscate rebels’ property

and later the property of rebel sympathisers. In Millar v United States90

it was noted that the

power to declare war included the means to prosecute the enemy by any means necessary.

This included the seizure of lands and property of the enemy which was disposed of at the

will of the captor. The 1844 case Brig Malek Adhel91

the use of forfeiture was justified as ‘the

only adequate means of suppressing the offence or wrong and ensuring an indemnity to the

injured party.

In the latter part of the twentieth century modern civil forfeiture emerged as an antidote for

the vast amounts of criminal wealth accumulated from drug trafficking. During the1970s, the

United States initiated an assault on criminal activity through targeting the assets linked to

criminal activity. These assets included cash or properties which were connected with crime

or items that may have been used in the commission of crimes92

. The 1970 Comprehensive

Drug Prevention Act and the 1986 Anti-Drug Abuse Act contained provisions that referred to

the notion of ‘guilty-property’ to include any property ‘traceable to criminal activity’. Unlike

the United Kingdom, the United States does not have a forfeiture statute providing for the

85

Right to Liberty and Security of Person 86

Right to a Fair Trial. 87

Booz, Allen Hamiton (2011), p46. 88

Kennedy (2006), p3 89

Booz Allen Hamiiton (2011), p151 90

78 US (11 Wall) 286, 365, (1871) 91

43 U.S. (2 How) at 233 92

Colin King and Clive Walker ‘Emerging Issues in the Regulation of Criminal and Terrorist Assets

29

forfeiture of property for all types of offences. Civil Asset Forfeiture Provisions can be found

in over 100 Federal Statutes including (a) Racketeering and Influenced and Corrupt

Organisations Act (RICO) which authorises the U.S. Government to forfeit any property and

any interest the person has acquired and maintained…which includes any property, security

or contractual rights of any kind. (b) The Comprehensive Drug Abuse and Prevention and

Control Act (1970-1984), which broadened the reach of forfeiture and authorises the

Government to ‘forfeit all property used to commit a drug offence and to facilitate the trade

of narcotics and proceeds derived from the Drug Trade. (c) The PATRIOT Act which permits

the government to seize all assets of a person who is engaged in activities that may constitute

terrorism93

.

The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) is the closest the United States has

come to enacting a federal forfeiture regime. The Act of 2000 is a statute that is designed to

provide for a uniform procedure for federal civil asset forfeiture. It provides for the seizure

and subsequent forfeiture for a large number of federal offences which includes murder,

kidnapping, arson, drug trafficking and extortion94

.

Types of civil forfeiture in the United States Summary forfeiture authorises law enforcement to make on the spot seizures of property

where no person claims ownership. It is applied in cases where of seizure of contraband

goods where ownership is vested with law enforcement because no other legal ownership

exists.95

Administrative forfeiture allows for the seizure of property during an investigation if there is

probable cause to suspect that the property is the proceeds of crime. Once seizure has been

completed, the seizing agency must begin the forfeiture proceeding within 60 days and must

give the owner a sufficient time to file a claim. It is the forfeiture of assets to the United

States by an authorised federal agency. The federal agency has sole jurisdiction over the

forfeiture proceeding and there is no judicial intervention.

Civil Judicial Proceedings are used to institute forfeiture proceedings against real estate. The

government institutes in rem proceedings against the property itself. Once a civil action has

been filed to the Court anyone with in interest in the property can file a claim to the property.

The initial burden of proof is on the Government to demonstrate probable cause to believe

that the property is forfeitable. This burden then shifts to the claimant to prove, based on the

balance of probabilities that the he/she is the innocent owner of the property and should not

have his/her property seized96

.

When seizing property associated with criminal activity the US government does not need to

present direct evidence to the court supporting its position that the property has been acquired

using the proceeds of crime. It is only necessary to present a probable cause. In United States

93

Booz, Allen Hamilton (2011) p153. 94

Ibid. 95

Ibid. 96

ibid

30

v Jeffers97

the Supreme Court considered the status of certain contraband that was seized

during an illegal search. The Court noted that, although the property did belong to the

petitioner, and the property was seized illegally, the petitioner was not entitled for the

property to be returned to him since the evidence was considered to be contraband and

acquired through the proceeds of crime. Additionally in United States v Parcels of Land the

land in question was purchased through the proceeds of crime. The court allowed the

forfeiture on the basis that the value of the land in question greatly exceeded the owner’s

annual income and also due to the fact that the property was purchased with large amounts of

cash98

.

However the use of asset forfeiture in the United States has not been without controversy.

Piety notes that the doctrine of tainting a property with guilt is as about as relevant to

claiming ‘that an inanimate object has been possessed by a demon’. As a result law

enforcement authorities have the power to extract assets from innocent individuals without a

higher standard of proof and will affect the due process of these individuals99

.

The procedure of placing the burden of proof on the offender is highly criticized. The

government has the advantage of over property owners in a lawsuit to get a property returned.

It has been argued that the current allocations of burdens of proof creates a risk of a

deprivation of the rights to property100

. In Boyd v United States101

, it was ruled that measures

permitting the seizure and forfeiture of property were repugnant to the Fourth102

and Fifth103

Amendments of the US Constitution. The court considered these proceedings criminal in

nature. Thus is was regarded by the court that certain evidence obtained as a result of an asset

forfeiture was in violation of the Fourth Amendment (prohibiting unlawful search and

seizure), noting that such a forfeiture could result in a greater punishment than in criminal

proceedings. In practice as a result of the case Brighinshaw, the statutory requirement for

forfeiture that the US government must is higher than the balance of probabilities, and is

closer to the standard of ‘clear and convincing evidence’, before the burden of proof shifts to

the owner of the property104

.

Civil forfeiture has also come under attack in the United States from the political front.

Political pressure has been asserted by defence attorneys opposed to giving law enforcement

too much power with regard to the implementation of civil forfeiture. It is argued that these

97

342 U.S. 48 (1951). 98

Schwarcz and Rothman. P294 99

Piety (1991), p23. 100

Drug Policy Foundation ‘Policy Briefing: Asset Forfeiture’ (1999) (online) available: http://www.drugpolicy.org/docUploads/Asset_Forfeiture_Briefing.pdf (accessed 09/06/14) 101

116 US 436 616 (1886) 102

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized 103

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation 104

Booz Allen Hamilton (2011), p160.

31

agencies have become to ‘addicted’ to civil forfeiture due to the equitable sharing

programme, which allows agencies at local, state and federal level to generate revenue from

forfeiture. This equitable sharing programme has allowed for the transformation of the

objectives and motives of civil forfeiture from using it as a tool to attack the economic

foundations of criminal activity to a system where there are ‘collateral benefits for law

enforcement agencies.’105

However these programmes have been highly criticised as they

supposedly encourage the seizure of assets and not the suppression of crime. As a result there

are fears that many law enforcement agencies, particularly at local level have begun to shift

their focus towards ‘policing for profit’106

.

Conclusion

This chapter has examined the impact of the emergence of a ‘middleground of justice’ with

reference to the civil forfeiture in the United Kingdom and the United States. While it appears

that civil forfeiture is indeed useful to law enforcement authorities in combating criminal

activity, there are concerns that the use of forfeiture has affected the legal safeguards of

citizens under criminal law. This chapter has focused on the civil forfeiture regimes in two

different countries, the United States of America and the United Kingdom

This chapter has examined the evolution of civil forfeiture in both these countries. It is clear

that the rationale for both countries to introduce such legislation is to curb the damaging

effect that drug trafficking and other illegal activities on the public peace and the rule of law.

Both systems have proven to be effective in achieving this aim. Despite this, there has been

controversy over the impact that civil forfeiture has on the due process as it is conducted in

accordance to the civil standard where the safeguards of criminal law do not apply.

The second part of this thesis will examine the emergence of civil forfeiture in Ireland. It will

begin with a chapter examining the reasons behind the need for the introduction of civil

forfeiture in Ireland. Finally, the fourth chapter will examine the impact of the Introduction of

civil forfeiture in Ireland.

105

Nielson, Cited in Showmaker (2007), pp12-13. 106

Booz, Hamilton, Allen (2011), p163

32

Chapter 4

The development of civil forfeiture in Ireland In the wake of the McCabe and Guerin murders legislative measures have increased Garda

powers and altered trial procedures and correspondingly limited to the rights of suspects.

However despite the reforms made to the criminal justice system and in particular, the

Criminal Justice (Money Laundering) Act 1994 the public and political concern toward crime

did not subside. The strength and resources of criminal organisations led the general public to

believe that they could act without any accountability or impunity.

Prior to 1996, there was a general consensus in Ireland that there was no need to introduce

civil asset forfeiture and that conviction based forfeiture fitted the country’s needs. This was

the popular belief of the Law Reform Commission in 1991 which, after considering the

possibility of asset forfeiture, considered conviction based forfeiture to fit the country’s

needs107

.

“While a civil forfeiture of this nature is not without its attractions, it also presents serious

constitutional difficulties. The court would, in effect be depriving someone of their property

on the basis of allegations of criminal activity, where there has been no conviction or proof.

Hence it might be held that legalisation of this nature would constitute an ‘unjust attack on

property rights in contravention of Article 43 of the Constitution.’108

However following the murders of Detective McCabe and Ms Guerin, the issue of crime

became an issue of public and political concern. The threat of organised crime came to the

forefront of the political agenda. The public outrage in response to these murders, gradually

shifted the approach of policy makers toward using the civil process within criminal matters

and increased support towards civil forfeiture. Concerns regarding the increasing levels of

criminal activity were reflected in debates in the Dáil and the Seanad.

“There is a growing unease that criminal law and the methods used to deal with organised

crime are causing a gradual and consistent undermining of civil and human rights. A view of

crime based on fear has been generated in this country….The number of murders and crimes

against women are of great concern to me. A serious situation has been allowed to develop in

terms of the response of the law to the growth of serious crime”109

. (Senator Kathleen O

Mara)

107

Booz Allen Hamilton ‘Comparative Evaluation of Unexplained Wealth Orders’ (Prepared for the US Department of Justice, National Institute of Justice, October 31

st 2011)

108 Law Reform Commission, ‘Report on the Confiscation of the Proceeds of Crime’ (LRC 35 1991) p.51.

109 Dail Eireann ‘Private Members Business- Measures Against Crime, July 2, 1996

33

On the 25th

of July 1996 the Irish Government introduced a number of legislative measures

geared toward targeting the proceeds of crime and brought the resources of State agencies

including the Gardaí, the Revenue Commissioners and the Department of Social Welfare,

under the Criminal Assets Bureau (CAB) Act 1996. CAB’s primary function is to utilise all

legal remedies of the State to pursue the assets and illegally obtained funds of targeted

serious criminals. While the ‘CABs’ primary weapon is the Proceeds of Crime Act 1996, it

also makes use of Criminal Law, the Taxes Code and the Social Welfare Code110

Additionally two pieces of legislation were passed on the 25th

and 26th

of July 1996, the

Disclosure of Certain Information For Taxation and Other Purposes Act 1996111

, which gives

a statutory basis for the Revenue Commissioners to share information with the Gardaí where

it is suspected that a person has profited from criminal activity. The second piece of

legalisation is the Proceeds of Crime Act 1996, which provides for the confiscation of

property which constitutes directly or indirectly, the proceeds of crime. It should be noted

that while the Proceeds of Crime Act is generally operated by members of the Criminal

Assets Bureau, the powers under the act are available to any member of an Garda Síochana

not below the rank of Chief Superintendent112

.

These three pieces of legislation resulted in a new approach mirroring the Offences against

the State Act 1985 and civil forfeiture legislation used in the USA-namely the use of punitive

civil sanctions and a hybrid process to confiscate the proceeds of crime. This chapter will

examine the nature of the introduction of these three pieces of legislation and the impact that

this has had on criminal activity in Ireland.

The rationale for the use of civil forfeiture in Ireland The adoption of civil forfeiture in Ireland has represented a radical shift from the

conventional criminal law model of investigation, prosecution, conviction and punishment

toward the disruption and discouragement of criminal activity by removing the motive

(profit) and the means (operating capital) to commit crimes113

. However it has also been

labelled a radical and disproportionate response to crime by respondents and their legal

representatives and has been challenged on the grounds that it is defacto criminal law, thus

violating basic constitutional principles and depriving respondents of protections guaranteed

by criminal law and the Irish constitution. Although the Courts have recognised the broad

nature of civil forfeiture, particularly the Proceeds of Crime Act 1996 and the impact that it

has had on fundamental civil rights, they have held that civil forfeiture as a constitutional and

as a balanced measure to address crime114

.

The preliminary basis for the introduction of civil forfeiture in Ireland began through the

introduction of the 1985 Offences against the State Act. This was introduced on a temporary

110

Frank Cassidy, Grainne O Mahoney ‘Corporate Crime Elective: Proceeds of Crime’ Law Society of Ireland: 2004 Professional Practice Course 2 111

Henceforth referred to as the Disclosure Act 1996. 112

Cassidy, Murphy (2004), p13. 113

Richard Barrett The Criminal Assets Bureau: Proceedings Taken by the Criminal Assets Bureau http://www.jsijournal.ie/html/Volume%207%20No.%202/2007[2]_Barrett_Criminal%20Assets%20Bureau.pdf 114

Booz Allen Hamilton (2011), p123.

34

basis to facilitate the civil seizure of the property of illegal organisations which provided a

basis for the Proceeds of Crime Act 1996 which has a broader remit. Section 2 of the 1985

Act allowed the Minister of Justice to freeze monies held by a bank which was believed to be

part of the property of an unlawful organisation. After a period of six months the Minister can

make an ex parte application to the High Court directing that the finances be paid to the state.

The constitutionality of this scheme was upheld in Clancy v Ireland115

. Barrington J

concluded that the process amounted to a permissible delimitation of property rights in the

name of the common good. The learned judge also noted that the possibility of compensation

and the right to apply to the court for determination of ownership ensured constitutional

compliance116

.

Conviction based forfeiture Before examining civil forfeiture in Ireland, it is also useful to examine the Criminal Justice

(Money Laundering) Act 1994 which provides for conviction based confiscation. This is

relevant to examines as the Irish Authorities traditionally favours and prioritises conviction

based confiscation rather than civil forfeiture. A civil forfeiture proceeding would be

instituted against a person only if there was insufficient evidence to prosecute that person. If,

during an investigation more information became available and a prosecution was to be

initiated, civil forfeiture proceedings would cease and all materials would be passed to the

prosecutor117

.

The Criminal Justice Act 1994 provides for the forfeiture of proceeds derived from drug-

trafficking offenses and terrorism and other offences. It also allows for the direct and indirect

forfeiture of the proceeds of crime, that is, assets that can be directly removed from the

defendants or indirectly removed if assets or benefits are transferred to a third party to avoid

seizure and confiscation. Under the Act the defendant’s assets and property can be frozen,

pending a criminal trial to ensure that the property will be available if a confiscation order is

made following criminal conviction. If the court is satisfied, on the balance of probabilities,

that the defendant has gained profit as a result of criminal activity, the court may make a

confiscation order118

.

Civil forfeiture in Ireland Just as the Criminal Justice Act 1994, formed the basis of conviction-based forfeiture, the

foundation of civil forfeiture in Ireland is set out in the Proceeds of Crime Act 1996 The

objective of the Act is set out to be ‘aimed at depriving the respondent of property suspected

of being the proceeds of crime. The Act itself applies to any property or assets that constitute

the proceeds of crime. There is no need to show a connection between an offence and the

115

[1988] IR 326 116

Liz Campbell ‘The Recovery of “Criminal Assets in New Zealand, Ireland and England: Fighting Organised Crime and Serious Organised Crime in the Civil Realm. (online) available: http://www.victoria.ac.nz/law/research/publications/vuwlr/prev-issues/pdf/vol-41-2010/issue-1/campbell.pdf (accessed 11/04/14) 117

Booz Allen Hamilton (2011), pp124-124 118

ibid

35

property in question. Under the Act hearsay evidence is admissible in court and throughout

the course of proceedings the burden of proof shifts respondent119

.

In order to gain a full understanding of the Proceeds of Crime Act, it is important to

understand first the agency which enforces the Act. The Criminal Assets Bureau (CAB) is a

multidisciplinary agency consisting of a grouping of members from An Garda Síochana, the

Revenue Commissioners (both the Taxes and Customs Authority), the Department of Social

Welfare, Community and Family Affairs, and legal advisors. Its head is the Chief Bureau

Officer, who is a member of An Garda Síochana not below the rank of Chief Superintendent.

While the traditional focus of CAB has been on recovering the proceeds of drug trafficking,

the statutory remit covers all forms of criminal activity, and a number of actions have been

taken against the proceeds of criminal activity other than drug trafficking. Property targeted

includes cash, various financial instruments, vehicles, real estate and personal property.

In order to complete its objectives, the measures introduced by the legislation provide the

means for the Criminal Assets Bureau (CAB) to make applications to the High Court for

permission to seize assets that are suspected to be derived from criminal activity. CAB

represents a concentrated effort by these State Agencies to come together without barriers to

cooperation which have traditionally hindered their work. Section 4 of the Criminal Assets

Bureau Act 1996 sets out the main objectives of the CAB to be;

-The identification of assets, wherever situated belonging to a person or persons, where those

assets derive or are suspected to derive, directly or indirectly from criminal conduct.

-The taking of appropriate action under the law to derive or deny those persons, the assets or

benefits of such asset in whole or in part as may be appropriate.

-The pursuit of any investigation or the completion of any preparation work in relation to any

proceedings arising from these investigations120

.

The Bureau has enhanced capabilities and access to information when compared to a

traditional police force. The Bureau is also designed to circumvent traditional checks and

balances due to operating in the civil law forum. It is clear that the Bureau is primarily

engaged in using its wide-ranging powers to target particular forms of criminality that are

associated with serious/organised crime. 121

In 2013 CAB obtained 13 interim orders to the

value of €2.7 million and interlocutory orders to the value of €1million. The majority of the

orders emanated from crimes associated with drug trafficking, theft fraud, fuel laundering and

cigarette smuggling122

.

It is clear therefore that the Criminal Assets Bureaus mandate is to be a proactive and

interventionist unit. It is the function of each member to prevent crimes and detect offences

under the Proceeds of Crime Act.

119

ibid 120

Section 4 Criminal Assets Bureau Act 1996. 121

Colin King ‘The Confiscation of Criminal Assets:Tackling Organised Crime through the Middleground of Justice’ June 2010, University of Limerick 122

Garda Síochana Annual Report (2013)

36

Bureau Staff All CAB staff, including lawyers and accountants are located under one roof ensuring

cooperation at all levels but also in-house legal and forensic accountancy advice.

Under the CAB Act, officers and staff of the Bureau include:

-The Chief Bureau Officer, who is a member of an Garda Síochana not below the rank of

Chief Superintendent123

.

-The Bureau Legal Officers who reports directly to the CBO and whose role is to assist the

CBO in the pursuit of his/her work.

Bureau Officers who are members of the Gardaí, Revenue Commissioners or Social Welfare

Officers who have the main responsibility to oversee the enforcement of civil forfeiture in

Ireland. When exercising their powers, they do so under the direction and control of the

Chief Bureau Officer. They retain all their original powers and may perform duties as

members of their respective agencies as well as being members of the Criminal Assets

Bureau124

.

Powers of the Criminal Assets Bureau CAB officers conduct investigatory work on all civil confiscation cases. Cases are referred to

them by the regular Gardaí. On completion of an investigation the results are submitted to the

DPP who makes a determination based on the evidence whether or not to initiate criminal

proceedings. A decision to bring Proceeds of Crime proceedings or tax action is the

responsibility of the Criminal Assets Bureau125

.

Unlike the majority of civil forfeiture jurisdictions, Ireland does not have coercive

investigative powers within the Proceeds of Crime 1996. These powers are granted to the

Criminal Assets Bureau. Section 14 of the CAB Act authorised the CAB Bureau Officers to

search seize, and detain any property if there are reasonable grounds to suspect that the

property may constitute the proceeds of crime126

. Under Section 14, a district court judge, or

a bureau officer who is a member of An Garda Síochana not below the rank of

superintendent, may issue a warrant for the search of a location of a person found at that

place on hearing evidence by Gardai under oath and being satisfied that there are reasonable

ground to suspect that evidence related to asset or proceeds derived from criminal activities

are to be found here.

Civil forfeiture Powers-Interim, Interlocutory and Disposal Orders The Proceeds of Crime Act 1996 has established a framework for dealing with the alleged

proceeds of criminal activity. Applications for seizure of cash, property, and other assets can

be ordered without a prior conviction or a prima facie case which proves of criminal activity

beyond reasonable doubt, based on the balance of probabilities.

123

Section 7, CAB Act 1996 124

Section 8(2) CAB Act 1996 125

Allen, Booz, Hamilton (2011) p131. 126

Section 14 CAB Act 1996

37

The process for forfeiture involves a statutory injunction process where applications are made

‘ex parte’ for the seizure of ‘criminal assets’ by a member of An Garda Síochana not below

the rank of Chief Superintendent or by an authorised officer of the Revenue Commissioners.

The initial order is described as an “interim order” under Section 2 of the Proceeds of Crime

Act, prohibits the persons named in the order from disposing of or otherwise dealing with a

certain specified property or assets during a period of twenty-one days from the date of the

making of the order.127

Given the 2005 amendments to the Proceeds of Crime Act,

applications are no longer made in the name of the Chief Bureau Officer but rather in the

name of the Criminal Assets Bureau. The Supreme Court held in McK v F and Another128

that the application for an interim order must be brought within 21 days, but it does not have

to be heard in court during that period.

Following the expiration of this interim order, the court may make an ‘interlocutory order’

under Section 3 of the Act. This is where the members of the CAB submits evidence under

section 8 of the 1996 Act which will continue to be in force until the determination of the

application. After a period of seven years the court can issue a disposal order, where the

court can order CAB to transfer the assets which have been subject to the interlocutory order.

Alternatively, where all parties involved in the dispute consent to the disposal or return of the

assets during the seven year period, a consent disposal order can be issued under Section 4 of

the Act129

.

The Irish Supreme Court has noted that the term ‘interlocutory order has caused confusion

and has created an impression that that it was a provisional measure aimed at maintaining the

balance between the parties until the issue at hand had been resolved. In McK (F) v F (A)130

The court noted that while an interlocutory order is designed to restrain and freeze property

without disposing of it, it does not have the traditional meaning of an interlocutory injunction.

‘The purpose of an interlocutory injunction is to preserve the status quo between the parties

until the respective rights can be substantively determined. The Section 3 order is not on that

character. It is not ancillary in the sense of being ancillary to the substance relief.”

The Court outlined five reasons for this. First it is a free standing substantive remedy

imposing a complete embargo on any dealing with property. Second, it is not ancillary for an

order to be issued under Section 4 of the Proceeds of Crime Act. Thirdly, the substantive

allegation is that the property involved in the claim represents the proceeds of crime and the

court must be satisfied with this claim, based on the balance of probabilities. Fourth, given

the length of time it must be in effect (7 years) it is difficult to define it as a traditional

interlocutory order. Finally an interlocutory order in in force indefinitely, unless applicants

apply for it to be discharged.131

127

Murphy v Gilligan and others [2008] IESC 70 128

[2005] IESC 5 (SC) 129

Gay Mitchel MEP ‘Asset Confiscation as an instrument to deprive criminal organisation of the proceeds of Crime: Thematic Paper on Organised Crime (2012) ‘Special Committee on Organised Crime Corruption and Money Laundering’ pp2-4. 130

[2002] IESC 4 (SC). 131

Booz, Allen Hamilton (2011), p129.

38

Standard of Proof Section 8 of the Act sets out that the standard of proof that is required to determine any

questions that arise under the Act, namely proof on a reasonable balance of probabilities. It is

utilised where an authorised officer of the Criminal Assets Bureau is making an application

under Section 2 of the Act where officers from the CAB, usually the Chief Bureau Officer

and the investigating officer sets out their beliefs that they have in relation to the case and

the evidence backing up those beliefs132

. An example of this in practice can be seen in

F.McK v S.G133

, having considered the evidence of Chief Superintendent F.McK, and from

Garda O’K, both of whom made affidavits in relation to the application for a section 2

interim order under Section 8 of the Proceeds of Crime Act. In this case the Defendant was

suspected of being responsible for the armed hijacking of an electronic parts truck and theft

of monies from a truck. During the Garda Investigation a quantity of money was discovered

and seized at the defendant’s home. Proceedings were subsequently initiated under the

Proceeds of Crime Act. Both the Chief Bureau Officer and the investigating Detective Garda

O. K were of the belief that the money in question constituted the proceeds of the robbery.

Having considered the evidence submitted by both officers, White J. was, based on the

balance of probabilities, of the opinion that the monies in possession of the defendant

constituted the proceeds of crime and granted the interim order. However Section 8 has been

criticised for in essence making hearsay evidence admissible that would otherwise not be in

any normal civil proceeding134

.

Other provisions may be interpreted as providing a measure of protection to the respondent

particularly at the interim stage; an application can be made to the Court for an order

compelling the respondent’s to file an affidavit to the High Court specifying the properties in

the respondent possession or to control the income or sources of income135

. Additionally

there have been a number of changes in the Proceeds of Crime Amendment Act 2005 in light

of the experience gained by the CAB in the operation of the Act. These relate to the

submission of evidence and the validation of freezing orders for certain purposes such as the

enforcement of tax or court orders for the recovery of money and the establishment of a

corrupt enrichment orders which permits the CAB to seize proceeds where someone by

means of a corrupt act has benefited from the enhancement of property legally acquired as a

result of the corrupt act. The effect of this amendment is to strengthen the existing powers of

the Criminal Assets Bureau, the multi-agency body which is responsible for the enforcement

of the Proceeds of Crime Act136

. Also included is the removal of any doubt there may be

when a person is said to be in possession or in control of property for the purposes of the Act.

Safeguards Many of the objections made against civil forfeiture in Ireland have been founded upon

human rights concerns. Despite this the Irish and International Courts have found that civil

forfeiture is compatible with both the Irish constitution and International Law. It is argued

132

Staines, 2004, p24 133

[2007] IEHC 477 134

Staines 2004 135

Section 8 Proceeds of Crime Act 1996. 136

Department of Justice ‘Overview of Irish Law on Money Laundering’ (2009).

39

that civil forfeiture undermines the few safeguards that ensure that the defendant is presumed

innocent until proven guilty. However the Irish Courts have rebutted concerns by noting that

the Proceeds of Crime Act does not seek to prove the innocence or guilt of any individual137

.

“A person has no title to stolen goods and no punishment therefore accrues…if a thief steals

and sells goods, he will have the proceeds of his crime taken from him…The Act makes no

provision for the finding of guilt by anybody”138

.

Despite the broad range of powers listed in the Proceeds of Crime Act, there are a number of

safeguards provided under the act to protect the presumption of innocence and other rights

mentioned in the constitution. A key feature of the Proceeds of Crime Act is that when

applying for an Interlocutory order, the Chief Bureau Officer of the CAB must persuade the

High Court on the balance of probabilities that the assets in question are the proceeds of

crime worth €12,700 or above. If the Court is satisfied, it must grant the order, unless the

respondent satisfies the court that the assets in question are not the proceeds of crime.

Additionally a number of safeguards have been put in place to protect the rights of

individuals. Where the interim order is in place, it is open to any person to seek or to set aside

such an order if a person can satisfy the court that they have a legitimate right to the property.

The Court is also empowered to compensate any respondent if forfeiture is shown to be

unjust. Where the CAB relies on hearsay evidence it is the responsibility of the court to

determine the weight given to the evidence. The court will not make a disposal order if it is

satisfied that there is a serious risk of injustice139

.

A major issue that has arisen relates to Section 9 of the Act. Under this Section, the Criminal

Assets Bureau can make an application to the Court for an order of discovery compelling the

Respondent to file an affidavit in the High Court specifying any property or income that was

in his possession over a period not exceeding ten years prior to the application of the interim

order being made. In the Case of M v D140

the Respondent argued that Section 9 would offend

against his privilege against self-incrimination. Moriarty J. granted the Order under the

condition that the Director of Public Prosecutions would not utilise any information gleaned

from the Discovery order made in any future criminal cases141

.

Revenue Powers In addition to the powers of the Proceeds of Crime Act, the CAB is also empowered to use

Revenue powers to ensure the any proceeds of crime are subject to tax. Section 5 (1)b of the

Criminal Assets Bureau Act sets out the revenue functions of the Criminal Assets Bureau.

‘under the Revenue Acts142

or any provision of any other enactment, whether passed before

or after the passing of this act, which relates to revenue, to ensure that the proceeds of

137

Arvinder Sanbei European Court on Human Rights, Jurisprudence and Civil Recovery of Illicitly Obtained Assets (Confiscation in Rem) 138

O Higgins J in Michael F. Murphy and GM PB OC Limited and GH [4 June 1999] 139

Mitchell (2012), p8. 140

Unreported [December 10th,

1996] 141

Staines (2004) p10. 142

These Revenue Acts include the customs acts, the Tax Acts the Capital Gains Tax Acts etc.

40

criminal activity or suspected criminal activity are subjected to tax and that Revenue Acts are

fully applied in relation to such proceeds of crime or activities, as the case may be.

Additionally under section 5 of the Criminal Assets Bureau Act 1996, CAB is also required

to ensure that the proceeds of criminal activity are to be subjected to tax. In raising a tax

assessment, CAB in applying Revenue Acts to the proceeds of criminal activity has

considerable powers to require a taxpayer to furnish details of earnings and assets and to

obtain orders freezing monies and assets until all tax owed has been paid. If this tax is not

paid within thirty days the assessment by CAB is considered to be final and conclusive.

The Criminal Assets Bureau, in pursuing its remit to collect taxes, can utilise all available

legal remedies in the collection of taxes through the courts under the various Tax Acts. In

applying to the proceeds of criminal activity, the Revenue Bureau Officers of the CAB raise

assessments for tax when appropriate demands for tax have been made and can issue a

variety of enforcement proceedings to recover these taxes. In enforcing tax demands, the

Criminal Assets Bureau can make use of s 962 of the Taxes Consolidation Act Certificates s

102, of the Taxes Consolidation Act, 1997, High Court summary judgement proceedings and

judgement Mortgages143

.

Social Welfare Powers In the Social Welfare Forum, the legalisation operated by Social Welfare Bureau officers

consists of any claims made by persons suspected of engaging in criminal conduct, in respect

of the Social Welfare Acts for the investigation and determination of claims within the

meaning of section 204 of the Social Consolidation Act 1993144

Primarily, investigations carried out by Social Welfare Bureau Officers are in respect of

overpayments of various benefits such as unemployment assistance, lone parents allowance,

child benefit. They have the same powers and follow the same procedures as that of Deciding

Officers in the Department of Social Protection. Where a a Social Welfare Bureau Officer is

of the view that there has been an overpayment to a person, the Officer notifies that person

the finding, outlining the reasons for the overpayment, the amount involved and how it is

proposed to recover the money overpaid. If the person is having a social welfare payment

refused or terminated, the Social Welfare Bureau Officer also notifies the person of the

finding in this regard, outlining the reasons for the refusal or termination and of the fact of

either the refusal or termination of the payment145

.

143

Murphy, Cassidy (2006), p 18. 144

(a) in respect of any period the Executive or deciding officer has granted supplementary welfare allowance to or in respect of a person who, though entitled to any other benefit, pension, assistance, allowance or supplement under this Act (in this section referred to as “relevant payment”), is not in receipt of a relevant payment, and b) the supplementary welfare allowance is in excess of the amount which would have been granted to that person if he or she had been in receipt of a relevant payment, and ((c) the Executive or deciding officer has certified to the Minister the amount (in this section referred to as “the excess”) so paid in excess in respect of that period by the Executive the Minister may reduce any such relevant payment which is or may become payable to the person during the relevant continuous period of entitlement to that relevant payment by the amount of the excess and the amount shall be treated as having been paid on account of the relevant payment. 145

Cassidy, Murphy (2004), p21.

41

Forfeited Assets are transferred to the Exchequer. Part of the funds can be used to cover the

reasonable legal expenses of the respondent as well as to cover the receivers’ costs and the

management and maintenance of the property that has been seized146

.

Challenges to civil forfeiture in Ireland The confiscation of criminal assets under the Proceeds of Crime Act raises serious concerns

about circumventing traditional due process concerns that are inherent in the criminal

process. By resorting to the ‘civil process King has argued that the State has side-stepped the

rights of suspects and seeks to exact criminal punishment under the ‘cloak of civil law’. In

civil procedure “the legislature can achieve the exact same police goals as it does using

criminal law, without the inconvenience of affording the suspect enhanced protections and

procedures guaranteed by the Irish Constitution147

.

The reduced standard of proof-the balance of probabilities as opposed to the standard of

beyond reasonable doubt that applies in criminal cases-is the primary concern with the use of

civil forfeiture as a law enforcement tool. Despite these concerns, the Irish Courts seem to be

in favour of civil forfeiture as they feel it is a proportionate response to the threat faced by

Irish Society. McGuiness J. noted that organised crime had created a ‘new type of criminal,

organising rather than committing crimes who has the ability to insulate himself from law

enforcement with a wealth and veneer of respectability148

’. Hence it was noted that the

criminal process was not sufficient enough to convict these individuals and that a new

procedure was needed.

There are questions as to how much potential civil forfeiture has to encroach upon the

presumption of innocence? Also there are concerns that the civil forfeiture of assets

subsequent to an acquittal in criminal proceedings has the potential to undermine that

acquittal as well as the principle of double jeopardy149

.

One of the chief concerns regarding civil forfeiture is that it is not a process of criminal law.

Barrett notes that while some of its processes may be punitive and do constitute a penalty, the

criteria for a criminal process under Irish or European jurisprudence is not found in the asset

forfeiture system150

. The seminal decision on the Proceeds of Crime Act was delivered by the

Supreme Court in Murphy v GM, PB, PC Ltd, GH; Gilligan v CAB151

where the principal

arguments advanced against the Proceeds of Crime Act were that it was in effect part of

Criminal Law as opposed to Civil Law and that affected persons were deprived of important

constitutional safeguards which are traditionally part of the Criminal Law. For instance under

the Proceeds of Crime Act:

146

Booz, Allen, Hamilton, (2011), p139. 147

Colin Patrick King, ‘The Confiscation of Criminal Assets: Tackling Organised Crime Through A Middle Ground of Justice (2010) http://ulir.ul.ie/bitstream/handle/10344/1614/2010_King%2cC.pdf?sequence=6 (accessed 01/05/2014). 148

Gilligan v CAB [2001] 4 IR 113 149

Michelle Gallant and Colin King “The Seizure of Illicit Assets: Patterns of Civil Forfeiture in Canada and Ireland (2013). 150

Richard Barrett ‘Proceedings Taken by the Criminal Assets Bureau’ (2007) http://www.jsijournal.ie/html/Volume%207%20No.%202/2007[2]_Barrett_Criminal%20Assets%20Bureau.pdf 151

[2001] 4 IR 113

42

-The Presumption of Innocence is reversed.

-There was a necessity for a Mens Rea implicit that the court would not grant relief to

applicants where there was a risk of injustice.

-The Standard of Proof was on that balance of probabilities as opposed to beyond reasonable

doubt.

-There were no provisions under the Proceeds of Crime Act for Trial by Jury.

-The rule against double jeopardy was ignored.

-Opinion and hearsay evidence was admissible152

.

The applicants also outlined several features where the Act was indicative of its criminal

nature. One of the key feature as noted by them was that the procedures under Section 2 and

3 of the Act constituted in substance the trial of a person and would be unconstitutional.

Keane CJ, found that although the legalisation was unquestionably draconian, it was

compatible with the constitution and the proceedings under the act did not contain the indicia

of crime as noted in Melling v O’ Mathghamamhna153

. If the court was of the opinion that the

civil forfeiture was of a criminal nature, the Proceeds of Crime Act would not survive

constitutional scrutiny.

‘It is beyond argument that if the procedures under s2, 3 and 4 of the Act of 1996 constitute

in substance, the trial of persons on criminal charges, they would have been invalid having

regards to the provisions of the Constitution. The virtual absence of the presumption of

innocence and the provision of the standard of proof is to be on the balance of probabilities

is inconsistent with the requirement in Article 38.1 of the Constitution.

However there is no provision for the arrest or detention of any person for the admission of

persons to bail for the imprisonment of a person in default of payment or for the record of a

conviction in any form or for the entering of a nolle presequi at any stage in the legalisation.

The Proceeds of Crime Act could therefore be viewed in the light of reparation rather than

punishment or penalty154

.

While accepting that civil forfeiture in Ireland is indeed a civil process, the Irish Courts gave

recognised that the more serious allegation made in serious proceedings, the ‘more astute the

Judge must be to find that the allegation in question must be proved’155

. The court held that

the forfeiture was an in rem proceeding and that forfeiture does not constitute a penalty or

152

Michael Staines ‘Criminal Assets Bureau’ Lecture delivered by Michael Staines at the Law Society Criminal Law Committee Seminar 22

nd May 2004.

153 The indicia of crimes include where no one is charged with a criminal offense, where there are no

prosecutors, no criminal offense in created, no sanctions are imposed and there is no mens rea. [1962 IR 1 at pp24/25. 154

[2001] 4 IR 113 at 147 155

O Keefe v Ferris [1997] 2 ILRM 161, 168.

43

punishment but a measure imposed on the respondent whose aim is to restore or remedy the

situation156

.

King opines that civil proceedings regarding the forfeiture of property should be regarded as

more severe than conventional civil proceedings and thus require a higher standard of proof

as the loss of property and potential social stigma attached to a respondent as a result of a

forfeiture proceeding might be akin to a criminal conviction157

.

Secondly, the Irish Constitution specifically protects property rights. They are mentioned in

Article 40.3.2 where the State pledges itself as best as it ma to protect property rights from

unjust attack and, if injustice is done, to ‘vindicate those rights’. However McGuinness J.

noted in Gilligan v CAB158

that while the forfeiture provisions provided for in the 1996 Act

affected the property rights of a respondent. This effect involved does not rise to the level of

unjust attack, which is necessary for the constitutional protections to be triggered as the state

must first show that the property at the heart of the issue constitutes the proceeds of crime.

‘The right to private ownership cannot hold a place so high in the hierarchy of rights that it

protects the position of asset illegally acquired and held’

This decision reflects the decision made in the 1985 case Clancy, where it was noted that

there must be a narrow interference with property rights which is to be balanced against the

public interest. This was affirmed in M v D159

which concerned powers of discovery under

section 9 of the Proceeds of Crime Act, Moriarty J stated that ‘while it may be said that s9

does erode or interfere with property rights, this erosion must be balanced against the public

interest so that no unjust attack against the public interest is in fact disclosed.”160

Conclusion: Impact of Civil forfeiture in Ireland The adoption of civil forfeiture in Ireland has presented significant difficulties in relation to

the conflict between the State attempting to curb the impact of Organised Crime and the

avoidance of due process norms and the right inherent in criminal proceedings. The Irish

Criminal Assets Bureau and the Proceeds of Crime Act have had a significant impact on the

organised crime. In 2012 the value of assets frozen under Section 2 of the Proceeds of Crime

Act amounted to €2,110,334.78161

. These assets include Jewellery, Property, Vehicles and

Cash. In 2011 the Bureau transferred €2.682 million to the exchequer162

.

156

Staines 2004, 157

Colin King ‘Following the Money Trail: Civil forfeiture of ‘criminal assets in Ireland’ in Petrus van Duyne et al (eds), Human Dimensions in Organised Crime, Money Laundering and Corruption (WolfLegal Publishers, Nijmegen, 2013) pp.265-291

158 [2001] T.I.T.R. 383 (SC)

159 Ibid.

160 Colin King

161 CAB Annual Report 2012

162 CAB Annual Report 2011

44

It is clear that the application of civil forfeiture in Ireland has been more restrained. Booz and

Hamilton note that the concerns regarding the abuse of power by the Criminal Assets Bureau

was never expressed

In the past 2 decades of the implementation of Civil forfeiture there has been little to no

accusation of misconduct by the Criminal Assets Bureau. Despite challenges to the

constitutionality of the Proceeds of Crime Act, it has held strong and continues to attack

crime where it hurts criminals the most. …their pockets.

45

Conclusion

The goal of this study has been to examine the impact that civil forfeiture has had on a

person’s due process rights in Ireland.

It is clear that public and political concern surrounding organised crime resulted in the

adoption of civil forfeiture in Ireland. There is no doubt that since the adoption of the

Proceeds of Crime Act, the Irish Courts have developed significant jurisprudence on it. They

have on many occasions recognized the broad nature of the legislation, which permits the

State to deprive a person of his/her assets based wholly on allegations made by the State

which is supported by hearsay evidence. Despite this the courts continue to uphold the

PoCAs constitutionality. It is considered to be a proportional response to the risk that society

faces from serious and organised crime.

This thesis set out to understand the nature of civil forfeiture both in Ireland and

internationally.

The first chapter examined how the use of civil forfeiture is considered to be the result of the

development of a ‘middleground’ system of justice which uses civil law to achieve criminal

law objectives. By allowing proceedings to take place on the ‘balance of probabilities’, the

paradigm between criminal law and civil law has been eroded.

Chapter Two examined the nature of crime in Ireland and the reasons for the introduction of

civil forfeiture in Ireland. It examined the impact of increasing rates of drug addiction and

violent crime in the early 1990s. It conducted an examination into the social factors which led

to a rise in crime figures from the 1960s onwards. The shift in migration from rural to urban

areas resulted in an increase in population in urban areas, leading to challenges and

difficulties faced by local government brought about by social segregation within urban

areas. The use of prohibited substances became closely connected with the increase in crime.

Additionally the conflict in Northern Ireland resulted in criminal gangs gaining access to

weapons, training and became a powerful force that was underestimated by the Irish Police

Force. In particular was the successful use of ‘money laundering, in order to fund their

lifestyles and place money back into criminal enterprises.

In its fight against organised crime, the Irish government introduced a number of measures

and increased police powers of stop, search question, entry search and seizure. In particular

the Criminal Justice (Money Laundering) Act 1994 was aimed at the seizure of the proceeds

of criminal conduct.

The third chapter examined how Nation States have developed this middleground of justice

in practice, to the United States and the United Kingdom. In the United States, the use of civil

forfeiture has increased since the 1980s as part of enhanced drug law enforcement. In the

United Kingdom, following the practice of the Irish Authorities, the Proceeds of Crime Act

2003 was introduced to allow for the confiscation of criminal assets. Despite the advantages

of civil forfeiture in both jurisdictions, both the merits and disadvantages of civil forfeiture

46

have been examined. In the United States, there is particular concern that, as a result of the

‘equitable sharing programme’ law enforcement agencies have shifted their focus towards

policing for profit rather than the suppression of crime. In the UK particular concerns have

arisen with regard to how proceedings which are civil in nature, have criminal objectives and

how they circumvent the traditional safeguards of criminal law. These concerns however

have been dismissed by the courts.

Chapter 4 then examined the impact of civil forfeiture and the ‘anti-crime package of 1996’

in Ireland. This legislation represented a radical shift from the criminal law model of

investigation, prosecution, conviction and punishment toward the disruption and

discouragement of criminal activity by removing the motive and means for criminal gangs to

commit crimes. The establishment of the Criminal Assets Bureau represents a concentrated

effort by the State to tackle, without bureaucratic red tape, the organised crime in Ireland,

through the use of the Proceeds of Crime Act 1996, Tax and Social Welfare Powers.

It is the authors opinion that the adoption of civil forfeiture in Ireland presents significant

promise to undermine and reduce the impact of organised crime. The consequences of which

are clearly visible when one travels around disadvantaged areas in cities such as Dublin

Limerick and Cork, along with other urban areas.

However in recognising that civil forfeiture has presented significant difficulties with regard

to the avoidance of due process rights, the author is concerned that civil forfeiture the

presumption of innocence despite the Irish and International Courts noting that it is part of

the Civil law process and the safeguards under criminal law do not apply. It is still clear that

civil forfeiture does have a significant impact of the rights of the individual.

47

48

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