There is nothing new about seizing the assets of convicted criminals: since the 1970s there has been legislation enabling the State to obtain forfeiture of drugs and associated material even in the absence of any criminal conviction,writes Garret FitzGerald.
But in 1985 there was a new development which went beyond seizing the assets of convicted criminals. On Friday February 15th, 1985, my government learned that well over £1 million, the proceeds of extortion under threat of kidnap and murder by the Provisional IRA, had been lodged in a Navan bank account under the control of that organisation.
Working throughout the previous weekend with his staff, the attorney general, John Rogers, drafted legislation to seize that money. In fact over a score of different drafts were prepared over several days, successively modified and improved so as to make them proof against constitutional challenge.
On the following Tuesday morning the Bill they produced was approved by the cabinet in complete secrecy and, with the agreement of the opposition leader, Charles Haughey, was then without advance notice introduced in and passed by the Dáil after the banks had closed that afternoon
We had called an emergency session of the Seanad for that evening, (which led to a rumour, which we had to deny, about a currency devaluation) and we had alerted President Hillery that the Act would be brought to him late that night for signature after passage by the two Houses of the Oireachtas.
At least on that occasion the electorate was shown that when necessary our entire political system was capable of working with extraordinary speed and most harmoniously in the public interest. The seizure of these funds under that Act then stood up to a constitutional challenge.
Nine years later Fianna Fáil, again in opposition, introduced a Private Members' Bill, prepared by an eminent lawyer, the late Eamon Leahy, that had been based on that 1985 emergency legislation. This Bill was designed to give general effect to seizures, even in the absence of a criminal prosecution - let alone a conviction - of assets suspected of being derived from crime.
This Bill was taken over by the rainbow government and, in an amended form, emerged as the Proceeds of Crime Act 1996, which was enacted in conjunction with two supplementary Acts, the Disclosure of Certain Information for Taxation and Other Purposes Act, and the Process of Criminal Assets Civil Forfeiture Act.
These Acts had no international precedent. They were a home-grown piece of Irish legislation, co-operatively fashioned by opposition and government.
The first of these three Acts created a multi-agency body known as the Criminal Assets Bureau, which was given power to restrain, ie freeze, not just property such as drugs, but benefits or profits which, on the balance of probability rather than as a matter beyond reasonable doubt, have been derived from crime, as well as due on such profits - even where no proof exists that a crime has been committed, and where the owner of the property has not been convicted of one. In the absence of a successful action by the owners of the assets contesting the bureau's claim, the assets accrue to the State after seven years.
The laws were designed to deal with crime godfathers who, without risk to themselves, were accumulating great wealth by employing others to commit lucrative crimes such as bank robberies
By seconding to a single agency under one roof not just gardaí, but - anonymously for their protection against aggrieved criminals - officials of both the taxation and customs sides of the Revenue Commissioners and the Department of Social Welfare, and by providing them with a bureau legal office and legal and accountancy staff, a most powerful weapon was created against crime.
The great strength of the bureau is the ability of different bodies to co-operate and exchange information free of any bureaucratic obstacles
The bureau also has its own search warrant powers, authorised by a District Court judge. These have a seven-day validity, but in an emergency a Garda superintendent attached to the bureau may issue such a warrant with a 24-hour validity.
The bureau and its actions have withstood two powerful constitutional challenges. During this process forfeiture by it of assets have been held to be actions that are civil and not criminal in character.
Moreover, the reversal of burden of proof in relation to the character of the seized assets has been found to be legitimate because it operates only after the court has been satisfied on certain issues; and it has also been held that the right to private ownership cannot be given such a precedence as to protect illegally acquired assets.
Amongst the strengths of the bureau are the fact that legal aid is available to those who may be aggrieved at its actions and that compensation is payable if an order is proved to have been incorrect,
Other safeguards are that the courts are precluded from making seizure orders if they are satisfied that this would create a serious injustice; and that the bureau does not act in a selective fashion.
Moreover, the receipts from seizures go to the Central Fund - there is no agency profit motive!
This legislation was used as a template for the Proceeds of Crime Act in the UK, employing the Criminal Assets Bureau as a model for the establishment of the Assets Recovery Agencies in England and Wales and the Civil Recovery Unit in Scotland. These are shortly to be merged into a single UK agency.
Nothing as radical or effective as this exists in Continental Europe, although the Netherlands, Belgium and the Czech Republic have bodies that seek to address this problem. There, in contrast to our common law system, civil law seems less adaptable for this particular purpose.
Just as we, and the British, have had difficulties - in our case constitutional difficulties - about applying civil law processes within our jurisdictions, (sometimes to the puzzlement of our Continental EU partners), so also do they in this instance appear to find problems about adapting this successful innovation of ours to their needs.
So far, through successful seizures, the bureau has succeeded in restraining in excess of €120 million in the form of criminal assets and has also collected over €100 million taxes from criminals.
And there is a lot more yet to come, because the process is necessarily slow, and there is in preparation a long pipeline of impending actions.