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50 2001

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT, 2001

PART 3

Handling, ETC. Stolen Property AND OTHER Proceeds OF Crime

Interpretation (Part 3).

16. —(1) In this Part “principal offender”, for the purposes of sections 17 and 18, means the person who has stolen or otherwise unlawfully obtained the property alleged to have been handled or possessed, and cognate words shall be construed accordingly.

(2) For the purposes of this Part, a person is reckless if he or she disregards a substantial risk that the property handled is stolen, and for those purposes “substantial risk” means a risk of such a nature and degree that, having regard to the circumstances in which the person acquired the property and the extent of the information then available to him or her, its disregard involves culpability of a high degree.

(3) This Part is without prejudice to section 31 (as substituted by section 21 of this Act) of the Criminal Justice Act, 1994 .

Handling stolen property.

17. —(1) A person is guilty of handling stolen property if (otherwise than in the course of the stealing) he or she, knowing that the property was stolen or being reckless as to whether it was stolen, dishonestly—

(a) receives or arranges to receive it, or

(b) undertakes, or assists in, its retention, removal, disposal or realisation by or for the benefit of another person, or arranges to do so.

(2) Where a person—

(a) receives or arranges to receive property, or

(b) undertakes, or assists in, its retention, removal, disposal or realisation by or for the benefit of another person, or arranges to do so,

in such circumstances that it is reasonable to conclude that the person either knew that the property was stolen or was reckless as to whether it was stolen, he or she shall be taken for the purposes of this section to have so known or to have been so reckless, unless the court or the jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he or she so knew or was so reckless.

(3) A person to whom this section applies may be tried and convicted whether the principal offender has or has not been previously convicted or is or is not amenable to justice.

(4) A person guilty of handling stolen property is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both, but is not liable to a higher fine or longer term of imprisonment than that which applies to the principal offence.

Possession of stolen property.

18. —(1) A person who, without lawful authority or excuse, possesses stolen property (otherwise than in the course of the stealing), knowing that the property was stolen or being reckless as to whether it was stolen, is guilty of an offence.

(2) Where a person has in his or her possession stolen property in such circumstances (including purchase of the property at a price below its market value) that it is reasonable to conclude that the person either knew that the property was stolen or was reckless as to whether it was stolen, he or she shall be taken for the purposes of this section to have so known or to have been so reckless, unless the court or the jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he or she so knew or was so reckless.

(3) A person to whom this section applies may be tried and convicted whether the principal offender has or has not been previously convicted or is or is not amenable to justice.

(4) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both, but is not liable to a higher fine or longer term of imprisonment than that which applies to the principal offence.

Withholding information regarding stolen property.

19. —(1) Where a member of the Garda Síochána—

(a) has reasonable grounds for believing that an offence consisting of stealing property or of handling stolen property has been committed,

(b) finds any person in possession of any property,

(c) has reasonable grounds for believing that the property referred to in paragraph (b) includes, or may include, property referred to in paragraph (a) or part of it, or the whole or any part of the proceeds of that property or part, and

(d) informs the person of his or her belief,

the member may require the person to give an account of how he or she came by the property.

(2) If the person fails or refuses, without reasonable excuse, to give such account or gives information that the person knows to be false or misleading, he or she is guilty of an offence and is liable on summary conviction to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both.

(3) Subsection (2) shall not have effect unless the person when required to give the account was told in ordinary language by the member of the Garda Síochána what the effect of the failure or refusal might be.

(4) Any information given by a person in compliance with a requirement under subsection (1) shall not be admissible in evidence against that person or his or her spouse in any criminal proceedings, other than proceedings for an offence under subsection (2).

Scope of offences relating to stolen property.

20. —(1) The provisions of this Part relating to property which has been stolen apply—

(a) whether the stealing occurred before or after the commencement of this Act, and

(b) to stealing outside the State if the stealing constituted an offence where and at the time when the property was stolen,

and references to stolen property shall be construed accordingly.

(2) For the purposes of those provisions references to stolen property include, in addition to the property originally stolen and parts of it (whether in their original state or not)—

(a) any property which directly or indirectly represents, or has at any time represented, the stolen property in the hands of the person who stole the property as being the proceeds of any disposal or realisation of the whole or part of the stolen property or of property so representing the stolen property, and

(b) any property which directly or indirectly represents, or has at any time represented, the stolen property in the hands of a handler or possessor of the stolen property or any part of it as being the proceeds of any disposal or realisation of the whole or part of the stolen property handled or possessed by him or her or of property so representing it.

(3) However, property shall not be regarded as having continued to be stolen property after it has been restored to the person from whom it was stolen or to other lawful possession or custody, or after that person and any other person claiming through him or her have otherwise ceased, as regards that property, to have any right to restitution in respect of the stealing.

Amendment of section 31 of Criminal Justice Act, 1994.

21. —The Criminal Justice Act, 1994 , is hereby amended by the substitution of the following section for section 31 (money laundering, etc.):

“31.—(1) A person is guilty of money laundering if, knowing or believing that property is or represents the proceeds of criminal conduct or being reckless as to whether it is or represents such proceeds, the person, without lawful authority or excuse (the proof of which shall lie on him or her)—

(a) converts, transfers or handles the property, or removes it from the State, with the intention of—

(i) concealing or disguising its true nature, source, location, disposition, movement or ownership or any rights with respect to it, or

(ii) assisting another person to avoid prosecution for the criminal conduct concerned, or

(iii) avoiding the making of a confiscation order or a confiscation co-operation order (within the meaning of section 46 of this Act) or frustrating its enforcement against that person or another person,

(b) conceals or disguises its true nature, source, location, disposition, movement or ownership or any rights with respect to it, or

(c) acquires, possesses or uses the property.

(2) A person guilty of money laundering is liable—

(a) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 14 years or to both.

(3) Where a person—

(a) converts, transfers, handles or removes from the State any property which is or represents the proceeds of criminal conduct,

(b) conceals or disguises its true nature, source, location, disposition, movement or ownership or any rights with respect to it, or

(c) acquires, possesses or uses it,

in such circumstances that it is reasonable to conclude that the person—

(i) knew or believed that the property was or represented the proceeds of criminal conduct, or

(ii) was reckless as to whether it was or represented such proceeds,

the person shall be taken to have so known or believed or to have been so reckless, unless the court or jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether the person so knew or believed or was so reckless.

(4) Where a person first referred to in subsection (1) of this section does an act referred to in paragraph (a) of that subsection in such circumstances that it is reasonable to conclude that the act was done with an intention specified in that paragraph, the person shall be taken to have done the act with that intention unless the court or jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether the person did it with that intention.

(5) This section does not apply to a person in respect of anything done by the person in connection with the enforcement of any law.

(6) This Part shall apply whether the criminal conduct in question occurred before or after the commencement of this section and whether it was or is attributable to the person first mentioned in subsection (1) or another.

(7) (a) In this section—

(i) ‘criminal conduct’ means conduct which—

(I) constitutes an indictable offence, or

(II) where the conduct occurs outside the State, would constitute such an offence if it occurred within the State and also constitutes an offence under the law of the country or territorial unit in which it occurs,

and includes participation in such conduct;

(ii) ‘reckless’ shall be construed in accordance with section 16 (2) of the Criminal Justice (Theft and Fraud Offences) Act, 2001;

(iii) references to converting, transferring, handling or removing any property include references to the provision of any advice or assistance in relation to converting, transferring, handling or removing it;

(iv) references to believing that any property is or represents the proceeds of criminal conduct include references to thinking that the property was probably, or probably represented, such proceeds;

(v) references to any property representing the proceeds of criminal conduct include references to the property representing those proceeds in whole or in part directly or indirectly, and cognate references shall be construed accordingly.

(b) For the purposes of this section a person handles property if he or she, without a claim of right made in good faith—

(i) receives it, or

(ii) undertakes or assists in its retention, removal, disposal or realisation by or for the benefit of another person, or

(iii) arranges to do any of the things specified in subparagraph (i) or (ii).

(c) For the purposes of paragraph (a)(i)(II)—

(i) a document purporting to be signed by a lawyer practising in the state or territorial unit in which the criminal conduct concerned is alleged to have occurred and stating that such conduct is an offence under the law of that state or territorial unit, and

(ii) a document purporting to be a translation of a document mentioned in subparagraph (i) and to be certified as correct by a person appearing to be competent to so certify,

shall be admissible in any proceedings, without further proof, as evidence of the matters mentioned in those documents, unless the contrary is shown.

(8) Where—

(a) a report is made by a person or body to the Garda Síochána under section 57 of this Act in relation to property referred to in this section, or

(b) a person or body (other than a person or body suspected of committing an offence under this section) is informed by the Garda Síochána that property in the possession of the person or body is property referred to in this section,

the person or body shall not commit an offence under this section or section 58 of this Act if and for as long as the person or body complies with the directions of the Garda Síochána in relation to the property.”.

Amendment of section 56A of Criminal Justice Act, 1994.

22. —Section 56A (inserted by section 15 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 ), which deals with revenue offences, of the Criminal Justice Act, 1994 , is hereby amended by the substitution, for “Part VII”, of “Part IV or this Part”.

Amendment of Criminal Justice Act, 1994.

23. —The Criminal Justice Act, 1994 , is hereby amended by the insertion of the following section after section 57:

“Designation of certain states or territorial units.

57A.—(1) The Minister may by order, after consultation with the Minister for Finance, designate any state, or territorial unit within a state, that in his or her opinion has not in place adequate procedures for the detection of money laundering.

(2) Any person or body to whom or which section 32 of this Act applies (including any director, employee or officer thereof) shall report to the Garda Síochána any transaction connected with a state or territorial unit that stands designated under subsection (1).

(3) A person charged by law with the supervision of a person or body to whom or which section 32 of this Act applies shall report to the Garda Síochána if the person suspects that a transaction referred to in subsection (2) has taken place and that that subsection has not been complied with by the person or body with whose supervision the first-mentioned person is so charged.

(4) A report may be made to the Garda Síochána under this section in accordance with an internal reporting procedure established by an employer for the purpose of facilitating the operation of this section.

(5) In the case of a person who was in employment at the relevant time, it shall be a defence to a charge of committing an offence under this section that the person charged made a report of the type referred to in subsection (2) or (3) of this section, as the case may be, to another person in accordance with an internal reporting procedure established for the purpose specified in subsection (4) of this section.

(6) A person who fails to comply with subsection (2) or (3) of this section is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

(7) In determining whether a person has complied with any of the requirements of this section, a court may take account of any relevant supervisory or regulatory guidance which applies to that person or any other relevant guidance issued by a body that regulates, or is representative of, any trade, profession, business or employment carried on by that person.

(8) Where a person or body discloses in good faith information in the course of making a report under subsection (2) or (3) of this section, the disclosure shall not be treated as a breach of any restriction on the disclosure of information imposed by statute or otherwise or involve the person or body making the disclosure (or any director, employee or officer of the body) in liability of any kind.

(9) The Minister may by order, after consultation with the Minister for Finance, amend or revoke an order under this section, including an order under this subsection.”.