IE
S.I. No. 540/2017 - European Union (Freezing and Confiscation of Instrumentalities and Proceeds of Crime) Regulations 2017
Table of Provisions (24)
Statutory Text (24 Articles)
1. An offence under
section 1
of the
Prevention of Corruption Act 1906
(No. 34 of 1906).
2. An offence under
section 21
or 21A of the
Offences Against the State Act 1939
(No. 13 of 1939).
3. An offence under any of the following provisions of the
Misuse of Drugs Act 1977
(No. 12 of 1977)
(
a
) section 15(1);
(
b
) section 15A;
(
c
) section 15B;
(
d
) section 15C;
(
e
) section 17(2);
(
f
) section 20(1);
(
g
) section 21(1);
(
h
) section 21(2) consisting of a contravention of Regulation 4 of the Misuse of Drugs Regulations 1988 (
S.I. No. 328 of 1988
).
4. An offence under
section 4
of the
Criminal Law (Rape) Amendment Act 1990
(No. 32 of 1990).
5. An offence under
section 6
of the
Criminal Law (Sexual Offences) Act 1993
(No. 20 of 1993).
6. An offence under
section 34
(2) of the
Criminal Justice Act 1994
(No. 15 of 1994).
7. An offence under
section 2
of the
Sexual Offences (Jurisdiction) Act 1996
(No. 38 of 1996).
8. An offence under
section 3
(1), (3) or (4), 4A,
5
or 5A(1) of the
Child Trafficking and Pornography Act 1998
(No. 22 of 1998).
8G. (1) For the purposes of this Act, the aggregate of the value of any economic advantage derived, directly or indirectly, from a relevant offence, or from relevant conduct carried on by the defendant or another person, including by means of any subsequent reinvestment or transformation of direct proceeds, is the value of the defendant’s proceeds of that offence or conduct.
(2)(
a
) Subject to paragraph (
b
), for the purposes of determining whether the defendant has benefited from relevant conduct, and, if he or she has, of assessing the value of his or her proceeds of that conduct, the court shall make the assumptions set out in subsection (4).
(
b
) The court shall not make an assumption set out in subsection (4) if—
(i) that assumption is shown to be incorrect in the case of the defendant, or
(ii) the court is satisfied that there would be a serious risk of injustice in that case if the assumption were to be made.
(3) Where the court does not apply one or more of the assumptions set out in subsection (4), it shall state its reasons.
(4) The assumptions referred to in subsection (2) are as follows
(
a
) that any property appearing to the court—
(i) to have been held by the defendant at any time since the conviction, or
(ii) to have been transferred to the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against the defendant,
was received by the defendant, at the earliest time at which the defendant appears to the court to have held it, as an economic advantage derived from relevant conduct;
(
b
) that any expenditure of the defendant since the beginning of that period was met out of an economic advantage derived from that conduct;
(
c
) that, for the purpose of valuing any property derived from that conduct, the defendant received the property free of any other interests in it.
(5) For the purpose of assessing the value of proceeds of relevant conduct in a case where a confiscation order has previously been made against the defendant, the court shall not take into account any of that defendant’s proceeds of relevant conduct that are shown to the court to have been taken into account in determining the amount to be recovered under that order.
Amount to be recovered under confiscation order made under section 8F
8H. (1) Subject to subsection (2), where a confiscation order has been made under section 8F, the amount to be recovered under the order shall be equal to the amount assessed by the court to be the value of the defendant’s proceeds of the relevant offence or relevant conduct.
(2) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of the defendant’s proceeds of the relevant offence or relevant conduct, the amount to be recovered in the defendant’s case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised.
Reassessment of whether defendant has benefited from relevant offence or relevant conduct
8I. (1) This section applies where—
(
a
) the court has made a decision under section 8F(2) not to make a determination as to whether the defendant has benefited from the relevant offence or relevant conduct, or
(
b
) either—
(i) the court has determined under section 8F(1)(
a
) that the defendant has not benefited from the relevant offence or relevant conduct, or
(ii) an application has previously been made to the court under section 8F(1)(
b
) and the court has determined that the defendant has not benefited from the relevant offence or relevant conduct.
(2) The Director of Public Prosecutions may make, or cause to be made, an application to the court for it to consider evidence—
(
a
) which was not considered by the court in, as appropriate, making the decision referred to in subsection (1)(
a
) or the determination referred to in subsection (1)(
b
)(i) or (ii), and
(
b
) which, had it been considered, the Director of Public Prosecutions believes would have led the court to determine that the defendant had benefited from the relevant offence or relevant conduct.
(3) If, having considered the evidence, the court is satisfied that, had that evidence been available to it, it would have determined that the defendant had benefited from the relevant offence or relevant conduct, the court—
(
a
) shall—
(i) make, as appropriate, a determination or fresh determination of whether the defendant has so benefited, and
(ii) make a determination under section 8F(7) of the amount to be recovered by virtue of that section, and
(
b
) may make a confiscation order under section 8F(7).
(4) In considering an application under this section, the court may take into account any economic advantage derived by the defendant on or after, as appropriate, the date of the decision referred to in subsection (1)(
a
) or the date of the determination referred to in subsection (1)(
b
)(i) or (ii), but only if the Director of Public Prosecutions shows that the economic advantage relates to—
(
a
) the relevant offence, or
(
b
) where that offence is an extended confiscation offence, the relevant conduct which took place on or before that date by the defendant or another person.
(5) In considering any evidence under this section relating to any economic advantage to which subsection (4) applies, the court shall not make the assumptions which would otherwise be required under section 8G.
(6) No application shall be entertained by the court under this section if it is made after the end of the period of 6 years beginning with the date on which the defendant was convicted.
Revised assessment of proceeds from relevant offence or relevant conduct
8J.(1) This section applies where a court has made a determination (referred to in this section as ‘the current determination’) under section 8F(7) of the amount to be recovered in a particular case by virtue of that section.
(2) Where the Director of Public Prosecutions is of the opinion that the real value of the defendant’s proceeds of the relevant offence or relevant conduct was greater than their assessed value, the Director of Public Prosecutions may make, or cause to be made, an application to the court for the evidence on which that opinion was formed to be considered by the court.
(3) In subsections (2) and (4)—
‘assessed value’ means the value of the defendant’s proceeds as assessed by the court under section 8H(1);
‘real value’ means the value of the defendant’s proceeds which relate to—
(
a
) the relevant offence, or
(
b
) the relevant conduct which took place either in the period by reference to which the current determination was made or in any earlier period.
(4) If, having considered the evidence, the court is satisfied that the real value of the defendant’s proceeds is greater than their assessed value (whether because their real value was higher at the time of the current determination than was thought or because the value of the proceeds has subsequently increased), the court shall make a fresh determination under section 8F(7) of the amount to be recovered by virtue of that section.
(5) Any determination under section 8F(7) by virtue of this section shall be by reference to the amount that might be realised at the time the determination is made.
(6) For any determination under section 8F(7) by virtue of this section, section 8G(5) shall not apply in relation to any of the defendant’s proceeds that were taken into account in respect of the current determination.
(7) In relation to a determination under section 8F(7) by virtue of this section—
(
a
) section 3(2) shall have effect as if for ‘a confiscation order is made against the defendant’ there were substituted ‘of the determination’,
(
b
) sections 3(8), 10(5)(
a
) and 12(4) shall have effect as if for ‘confiscation order’ there were substituted ‘determination’, and
(
c
) section 8H(2) shall have effect as if for ‘confiscation order is made’ there were substituted ‘determination is made’.
(8) The court may take into account any economic advantage derived by the defendant from the relevant offence or relevant conduct on or after the date of the current determination, but only if the Director of Public Prosecutions shows that the economic advantage relates to—
(
a
) the relevant offence, or
(
b
) where that offence is an extended confiscation offence, the relevant conduct which took place on or before that date by the defendant or another person.
(9) In considering any evidence relating to any economic advantage to which subsection (8) applies, the court shall not make the assumptions which would otherwise be required by section 8G.
(10) If, as a result of making the fresh determination required by subsection (4), the amount to be recovered exceeds the amount set by the current determination, the court may substitute for the amount to be recovered under the confiscation order which was made by reference to the current determination such greater amount as it thinks just in all the circumstances of the case.
(11) No application shall be entertained by the court under this section if it is made after the end of the period of 6 years beginning with the date on which the defendant was convicted.”.
Amendment of section 9 of Principal Act
9. An offence under
section 6
of the
Offences Against the State (Amendment) Act 1998
(No. 39 of 1998).
10. An offence under any of the following provisions of the
Criminal Justice (Theft and Fraud Offences) Act 2001
(No. 50 of 2001)
(
a
) section 4;
(
b
) section 9;
(
c
) section 17(1);
(
d
) section 18(1);
(
e
) section 25(1);
(
f
) section 26(1);
(
g
) section 29(1);
(
h
) section 29(3);
(
i
) section 33(1);
(
j
) section 34(1);
(
k
) section 34(2);
(
l
) section 35(1);
(
m
) section 36(1);
(
n
) section 36(2);
(
o
) section 37(1);
(
p
) section 38(1).
11. An offence under
section 6
of the
Criminal Justice (Terrorist Offences) Act 2005
(No. 2 of 2005).
12. An offence under
section 2
or
3
of the
Criminal Law (Sexual Offences) Act 2006
(No. 15 of 2006).
13. An offence under section 71A or
72
of the
Criminal Justice Act 2006
(No. 26 of 2006).
14. An offence under
section 2
,
3
,
4
or
7
of the
Criminal Law (Human Trafficking) Act 2008
(No. 8 of 2008).
15. An offence under
section 7
of the
Criminal Justice (Money Laundering and Terrorist Financing) Act 2010
(No. 6 of 2010).
16. An offence under
section 3
,
22
or
41
of the
Criminal Law (Sexual Offences) Act 2017
(No. 2 of 2017).
17. An offence under any of the following provisions of the
Criminal Justice (Offences Against Information Systems) Act 2017
(No. 11 of 2017)
(
a
) section 3;
(
b
) section 4;
(
c
) section 6.
18. An offence consisting of attempting to commit an offence referred to in any of paragraphs 3, 4, 5, 6, 7, 8, 10 (other than an offence referred to in paragraph 10(
c
), (
d
), (
f
), (
g
), (
h
), (
m
) or (
n
)), 11, 14, 15, 16 and 17(
a
) or (
b
).
19. For the purpose of proceedings for a relevant offence (within the meaning of section 3 of the Principal Act) instituted but not concluded before the commencement of these Regulations, section 4, or, as the case may be, section 9, of the Principal Act applies as if these Regulations had never been made.
GIVEN under my Official Seal,
28 November 2017.
CHARLES FLANAGAN,
Minister for Justice and Equality.
1 OJ L 127, 29.4.2014, p. 39
20. An offence consisting of conspiracy to commit an offence carrying a maximum penalty of four years’ imprisonment or more.”.
Saver
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of
1
st December
, 2017.
I, CHARLES FLANAGAN, Minister for Justice and Equality, in exercise of the powers conferred on me by
section 3
of the
European Communities Act 1972
(No. 27 of 1972) and for the purpose of giving effect to Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014
1
on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, hereby make the following regulations
Citation