Committee Reports > List of Committees > Dáil > 1983 > Committee of Public Accounts > Interim and Final Report - Appropriation Accounts 1978 - 1979

APPENDIX B

Statement of the position on forfeiture in certain countries

1. United Kingdom

(a)In the United Kingdom, interest in forfeiture was provoked by a decision in 1980 of the House of Lords. The defendants were convicted of conspiracies to manufacture and sell large quantities of lysergic acid diethylamide (LSD). Some of the proceeds were discovered by the police. They had been paid into bank accounts, used to purchase land in the United Kingdom and other European countries, or invested in gold bars and placed in safety deposit boxes. The trial judge ordered that the entire property should be forfeited to the State. The House of Lords ruled that there was no legal authority to do this since the statute only gave the court the right to seize the drugs, their accoutrements and, possibly, the actual cash handed over in exchange for the drugs.

(b)The Howard League of Penal Reform set up an independent committee to consider the topic. Their Report: The Profits of Crime - Report of the Committee on Forfeiture of Assets in Criminal Offences (London, Heinemann Educational Books), was published earlier this year.

(c)The Home Secretary has recently announced his Government’s intention to introduce proposals to provide for the confiscation of assets illegally acquired.

2. Australia

(a)The Customs Amendment Act 1979 gave the law enforcement agencies in Australia more effective power of seizure than before for offences related to illegal drugs. Any money and goods found in the possession or under the control of a person by reason of his illicit dealing in drugs is subject to forfeiture; such forfeiture extends to goods converted into money and vice versa.

(b)This Act extends to property acquired outside Australia. Courts are empowered to appoint the Official Receiver to take over the accused’s property, details of which may be found through examination of the accused. A charge is created on the offender’s property and it takes priority over all other encumbrances whatsoever, unless a bankruptcy petition is filed within six months of the court order to the Official Receiver to pay the pecuniary penalty, in which case the second order will take precedence over the first.

3. Canada

(a)Canada has several laws which facilitate the process of tracing the proceeds of crime and prosecuting those who possess the assets. These laws, combined with the laws of conspiracy, give law enforcement authorities in Canada significant powers to search for and seize evidence relating to the possession of any asset which was obtained either directly or indirectly from a serious crime, wherever it may have occurred. The laws of conspiracy in Canada make it an offence for anyone, whether in Canada or elsewhere, to conspire to possess the proceeds of crime in Canada.

(b)Although this law seems wide in application, it has some serious limitations with respect to seizure and forfeiture of certain types of proceeds. Real property and intangible assets, such as debts, are not always seizable, even though the person or persons may be convicted for possessing such property. There are no freezing powers to prevent the disbursement of such funds. The entire process is even further complicated if the assets are located outside Canada. Thus, even following a successful prosecution, forfeiture of the property may prove impossible.

(c)Canada is at present examining ways of improving the ability of law enforcement authorities to cause the freezing or seizure and subsequent forfeiture of all assets of value which are established to be the proceeds of criminal activity.

4. United States of America

(a)The American Internal Revenue Service (Criminal Investigation Department) plays a major role in investigating individuals whose income is generated from legal or illegal activities including drug trafficking. Whether or not prosecution is attempted following such investigations, the amount of tax due must be collected. This civil function of collecting the revenue is the responsibility of the IRS Examination and Collection Divisions. Where collection is in jeopardy special civil assessments may be made including seizures of assets if necessary to ensure collection of the revenue. In the fiscal year 1982 the IRS placed 729 major narcotics traffickers under criminal investigation and recommended to U.S. attorneys that 347 traffickers be prosecuted for tax and related crimes. Sentences for narcotics traffickers convicted on tax charges (121 in 1982) averaged nearly 4 years for over three-quarters of those convicted. Additionally, and perhaps at least as significant if not more so, is the fact that the Examination Division assessed over $225 million in taxes against narcotics traffickers in 1982.

(b)The Comprehensive Crime Control Act was signed into law by President Regan in October 1984. This piece of legislation deals with the criminal justice system all the way from the original apprehension arrest and custody of a defendant through to the sanctions imposed by way of sentence. A major component of the Act is the question of forfeiture of assets.

(c)The Associate Attorney General, D. Lowell Jensen, gave the following analysis in a press conference announcing Congress’s passing of the legislation:

Forfeiture

“The next area that is addressed by the legislation that I think will have a profound impact is the area of forfeiture. There is a level of available forfeiture now for drug trafficking and for racketeering offences. This bill extends that dramatically. It permits forfeiture in every drug offence. Now, in every felony offence, we can seek the proceeds and the profits of illicit drug trafficking. It allows us to go after those and preserve them in a fashion where we can freeze the assets in a way we can’t now; it permits us to deal with forfeiture in a way where we can use an administrative process where it is fair. Under the present circumstances, we have to go into crowded courts and actually go through a judicial proceeding, where it is really not necessary, in order to liquidate the assets that have been seized in drug cases. And this will prevent that, will permit us to get forfeiture in an expedited fashion, through an administrative process, which also preserves the rights of innocent third parties.

“So we expect, from the forfeiture provisions, to not only increase this dramatically, but for the first time to be able to actually share those proceeds with state and local law enforcement agencies that participate in drug investigations. At the present time there is not an easy fashion in which that is accomplished; this bill would allow us to share proceeds with state and local agencies where they have participated in a drug investigation. It should enhance the kind of co-ordination that we desire and that we have fought to achieve in drug investigations.”

(d)Asset seizures and forfeiture have been designated a litigation priority by the U.S. Department of Justice:-

(i)The Asset Forfeiture Office was created in the Criminal Division in July 1983 to assist prosecutions in the litigation of these cases. This office has had significant successes including two cases in one of which $25 million was forfeited under the Racketeer Influenced and Corrupt Organisations Statute while the other resulted in a $10 million civil forfeiture.

(ii)A National Asset Seizure and Forfeiture Program to manage the storage, maintenance, and security of seized and forfeitable assets was established by the U.S. Marshals Service in April 1982.

(e)The Organised Crime Drug Enforcement (OCDE) Task Force Program was established in 1982. In its first full year of operation, fines imposed plus seizures of cash and property exceeded $50 million. Since then over $100 million in assets has been seized.