Properties and other assets owned by Irish gangland or white-collar criminals in other jurisdictions are out of the reach of the Criminals Assets Bureau (Cab) but the situation could be remedied, a former key figure in the bureau has said.
Cab's former chief bureau legal officer, Frank Cassidy, added that he would use his new post at the European crime-fighting agency, Eurojust, to encourage other European Union states to follow the Irish model of taking assets from criminals without the need to secure criminal convictions against them.
Cassidy comes to his new post in The Hague as Ireland’s representative to Eurojust after spending six years of his legal career to 2012 guiding the Cab through some of its biggest, highest-profile and most complex cases. More recently he has been head of criminal appeals at the Director of Public Prosecution’s office.
He said he was hopeful more progress could be made across the EU in seizing criminals assets.
"I've always advocated the non-conviction-based confiscation remedy in Europe, because the Supreme Court in Ireland has considered the human rights issues involved and was satisfied it was fair and that there were sufficient safeguards in place such as people being entitled to free legal aid," he said.
“That court has concluded there are no fundamental property rights in the proceeds of crime. Even if member states were not happy to legislate for the remedy itself they could at least recognise Irish orders.”
However, he noted that the European Commission was again considering the remedy of non-conviction-based forfeiture, particularly in circumstances where a criminal trial might not be possible.
This can occur for a variety of reasons, including cases where people had died, absconded or were not fit to plead.
“I’d like to contribute to the debate and my position in Eurojust should assist me in that discussion,” Mr Cassidy said.
He has already joined a working group within Eurojust to examine non-conviction assets forfeiture.
The Cab’s ability to take assets from criminals via civil actions is provided for under the Proceeds of Crime Act. It was the main pillar in the State’s offensive against organised crime after journalist Veronica Guerin’s murder in 1996.
Since its enactment a large number of Irish gangland figures have relocated abroad, especially to southern Spain, where Dublin drug dealer Gerard Kavanagh was shot dead at the weekend.
However, while the Cab can seize the Irish assets of criminals who have moved abroad, the assets in those jurisdictions will not be seized by authorities there unless the target is convicted of the crimes the assets stem from. It means criminals operating in Ireland can put wealth out of the Cab’s reach by investing it abroad.
Confiscation orders granted by the High Court are not recognised abroad because some EU member states see non-conviction-based forfeiture as an attack on property rights. Some states are also uncomfortable that those targeted must prove their assets are legitimate, a reversal of the burden of proof a prosecutor normally needs to prove the case against a suspect.
In Ireland the High Court regularly accepts intelligence- based evidence from Garda witnesses that a person being targeted by the Cab is wealthy due, for example, to drug dealing and orders the assets to be confiscated.
In Europe, the assets would be confiscated only if the target was convicted of drug dealing in the period when they built their assets.
The State has long advocated the adoption of the Irish model, with Mr Cassidy now set to try to advance that via Eurojust.
Eurojust, staffed by representatives from EU member states, aims to facilitate and enhance international co-operation in the investigation of cross-border crime. It has been strengthened to be more proactive as international gangs have taken advantage of the opening up of the EU. If national police forces are working together in a joint investigation team co-ordinated by Eurojust, the admissibility in one member state of evidence found in another is easier.
As well as drug trafficking, Eurojust has assisted in cooperation between national policing forces in the investigation of gun smuggling, human trafficking and prostitution, cyber crime, international terrorism and money laundering.
