The people who draft legislation are unusual. The job is difficult and requires long training, experience and talent. Inevitably, mistakes are sometimes made.
Section 20 of the Proceeds of Crime (Amendment) Act 2005 looks like a mistake. The writing is not elegant; the reverse.
To understand Section 20 it is actually necessary to cut and paste the amendments set out in Section 20 into Section 38 of the Criminal Justice Act 1994.
Section 38 had, originally, a simple aim; to confiscate money entering or leaving the country and connected with drug trafficking.
Somebody, (probably the Minister for Justice etc.) decided to expand it to apply to cash connected with any criminal activity. In addition, it seems it was intended to allow confiscation regardless of the importation or exportation element.
So, Section 20 of the Proceeds of Crime (Amendment) Act 2005 inserted two new sub-sections into Section 38 of the Criminal Justice Act 1994.
However, no amendment was made to Section 38 (2) of the Criminal Justice Act 1994. Continued retention or confiscation of the cash was permissible only on the order of a District Court judge. Before making the order the judge had to be satisfied of certain matters (by evidence from the Gardai). That evidence included the requirement to show the cash was being imported or exported.
This renders the new provision Section 38 (1A) VERY difficult to rely on; most such cases would have no element of importation or exportation, and yet it is only when evidence showing such element is adduced that the sub-section becomes useful to the prosecution.
38.â(1) A member of the Garda SÃochÃ¡na or an officer of customs and excise may seize and, in accordance with this section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person’s proceeds of, or is intended by any person for use in, drug trafficking.
(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfiedâ
( a ) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and
( b ) that detention of the cash beyond forty-eight hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.
(3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so thatâ
( a ) no period of detention specified in such an order, shall exceed three months beginning with the date of the order; and
( b ) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section.
(4) Any application for an order under subsection (2) or (3) of this section may be made by a member of the Garda SÃochÃ¡na or an officer of customs and excise.
(5) At any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfiedâ
( a ) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or
( b ) on an application made by any other person, that detention of the cash is not for that or any other reason justified.
(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this sectionâ
( a ) an application for its forfeiture is made under section 39 of this Act; or
( b ) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected,
the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded.
20.âSection 38 of the Act of 1994 is hereby amendedâ
(a) by the substitution of the following subsections for subsection (1):
â(1) A member of the Garda SÃochÃ¡na or an officer of customs and excise may search a person if the member or officer has reasonable grounds for suspecting thatâ
(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and
(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.
(1A) A member of the Garda SÃochÃ¡na or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) ifâ
(a) its amount is not less than the prescribed sum, and
(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.â?,
(b) by the insertion of the following subsection after subsection (3):
â(3A) Where an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined.â?.