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2 2005

Criminal Justice (Terrorist Offences) Act 2005

PART 4

Suppression of Financing of Terrorism

Interpretation of Part 4.

12. —(1) In this Part, except where the context otherwise requires—

“disposal order” means an order under section 16 ;

“funds” means—

(a) assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and

(b) any legal document or instrument in any form, including electronic or digital, evidencing title to, or any interest in, any asset, including, but not limited to, a bank credit, traveller's cheque, bank cheque, money order, share, security, bond, draft and letter of credit;

“interim order” means an order under section 14 ;

“interlocutory order” means an order under section 15 ;

“member of the Garda Síochána” means a member of the Garda Síochána not below the rank of Chief Superintendent;

“respondent” means—

(a) a person in respect of whom an application for an interim order or an interlocutory order has been made, or

(b) a person in respect of whom an interim order or an interlocutory order has been made,

and includes a person who, but for this Act, would become entitled on the death of a person referred to in paragraph (a) or (b) to any funds to which such an order relates (being an order that is in force and is in respect of that person);

“Terrorist Financing Convention” means the International Convention for the Suppression of the Financing of Terrorism adopted by resolution 54/109 of the General Assembly of the United Nations on 9 December 1999, the English language text of which is set out for convenience of reference in Schedule 7.

(2) For the purposes of sections 14 to 20, a person is considered to be in possession or control of funds notwithstanding that all or part of them—

(a) are lawfully in the possession or control of a member of the Garda Síochána of any rank or any other person, having been lawfully seized or otherwise taken by any such member or person, or

(b) are subject to an interim order, an interlocutory order or any other order of a court that does either of the following or is to the like effect:

(i) prohibits any person from disposing of or otherwise dealing with the funds or diminishing their value;

(ii) contains any conditions or restrictions in that regard,

or

(c) are subject to a letting agreement, the subject of a trust or otherwise occupied by another person or are inaccessible.

(3) Subsection (2) is not to be construed to limit the generality of sections 11(2) and 13(2) of the Act of 1996 as made applicable by section 20 of this Act.

Offence of financing terrorism.

13. —(1) Subject to subsections (6) and (7), a person is guilty of an offence if, in or outside the State, the person by any means, directly or indirectly, unlawfully and wilfully provides, collects or receives funds intending that they be used or knowing that they will be used, in whole or in part in order to carry out—

(a) an act that constitutes an offence under the law of the State and within the scope of, and as defined in, any treaty that is listed in the annex to the Terrorist Financing Convention, or

(b) an act (other than one referred to in paragraph (a))—

(i) that is intended to cause death or serious bodily injury to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, and

(ii) the purpose of which is, by its nature or context, to intimidate a population or to compel a government or an international organisation to do or abstain from doing any act.

(2) Subject to subsections (6) and (7), a person who attempts to commit an offence under subsection (1) is guilty of an offence.

(3) A person is guilty of an offence if the person by any means, directly or indirectly, unlawfully and wilfully provides, collects or receives funds intending that they be used or knowing that they will be used, in whole or in part—

(a) for the benefit or purposes of a terrorist group as defined in section 4 , or

(b) in order to carry out an act (other than one referred to in paragraph (a) or (b) of subsection (1)) that is an offence under section 6 .

(4) A person who attempts to commit an offence under subsection (3) is guilty of an offence.

(5) An offence may be committed under subsection (1) or (3) whether or not the funds are used to carry out an act referred to in subsection (1) or (3)(b), as the case may be.

(6) Subsections (1) and (2) apply to an act committed outside the State if the act—

(a) is committed on board an Irish ship,

(b) is committed on an aircraft registered in or operated by the State,

(c) is committed by a citizen of Ireland or by a stateless person habitually resident in the State,

(d) is directed towards or results in the carrying out of an act referred to in subsection (1) in the State or against a citizen of Ireland,

(e) is directed towards or results in the carrying out of an act referred to in subsection (1) against a State or Government facility of the State abroad, including an embassy or other diplomatic or consular premises of the State, or

(f) is directed towards or results in the carrying out of an act referred to in subsection (1) in an attempt to compel the State to do or abstain from doing any act.

(7) Subsections (1) and (2) apply also to an act committed outside the State in circumstances other than those referred to in subsection (6), but in that case the Director of Public Prosecutions may not take, or consent to the taking of, proceedings referred to in section 43 (2) for an offence in respect of that act except as authorised by section 43 (3).

(8) A person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 20 years or both.

Interim order freezing certain funds.

14. —(1) If satisfied on application ex parte by a member of the Garda Síochána that a person is in possession or control of funds that are being used or may be intended for use in committing, or facilitating the commission of, an offence under section 6 or 13, the High Court may make an order prohibiting the person, any other specified person or any other person having notice of the order from—

(a) disposing of or otherwise dealing with all or, where appropriate, a specified part of the funds during such period, not exceeding 40 days, as may be specified by the Court, or

(b) diminishing the value of the funds during that period.

(2) An interim order—

(a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and

(b) shall provide for notice of the order to be given to the respondent and any other person who appears to be or is affected by it unless the Court is satisfied that it is not reasonably possible to ascertain their whereabouts.

(3) On application by the respondent or any other person claiming ownership of the funds specified in an interim order that is in force, the Court may discharge or, as may be appropriate, vary the order if satisfied that those funds or a part of them are not funds that are being used or may be intended for use in committing or facilitating the commission of an offence under section 6 or 13.

(4) On application by a member of the Garda Síochána or any other person, the Court may vary an interim order to such extent as may be necessary to permit—

(a) the enforcement of any order of a court for the payment by the respondent of any sum, including any sum in respect of costs,

(b) the recovery by a county registrar or sheriff of income tax due by the respondent pursuant to a certificate issued by the Collector-General under section 962 of the Taxes Consolidation Act 1997 , together with the fees and expenses provided for in that section, or

(c) the institution of proceedings for, or relating to, the recovery of any other sum owed by the respondent.

(5) Subsection (4) is not to be construed to limit the generality of section 6 of the Act of 1996 as made applicable by section 20 of this Act.

(6) On application at any time by a member of the Garda Síochána, the Court shall discharge an interim order.

(7) Subject to subsections (3), (6) and (11), an interim order continues in force until the end of the period specified by the Court and then lapses unless an application for an interlocutory order in respect of any of the funds concerned is brought during that period.

(8) If an application for an interlocutory order is brought within the period allowed under subsection (7), the interim order lapses on—

(a) the determination of the application,

(b) the expiry of the ordinary time for bringing an appeal against the determination, or

(c) if such appeal is brought, the determination or abandonment of the appeal or any further appeal or the expiry of the ordinary time for bringing any further appeal,

whichever is the latest.

(9) Notice of an application under subsection (3) for the discharge or variation of an interim order shall be given by the respondent or other person making the application to—

(a) the member of the Garda Síochána who applied for the interim order, and

(b) such other (if any) persons as the Court may direct.

(10) Notice of an application under subsection (4) for the variation, or under subsection (6) for the discharge, of an interim order shall be given by the applicant to—

(a) the respondent unless the Court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts, and

(b) such other (if any) persons as the Court may direct.

(11) Where a forfeiture order, or a confiscation order, under the Act of 1994 relates to any funds that are the subject of an interim order that is in force—

(a) the interim order is discharged, if it relates only to the funds that are the subject of the forfeiture order or the confiscation order, as the case may be, and

(b) the interim order is varied by the exclusion from it of the other funds, if it relates to other funds in addition to the funds that are the subject of the forfeiture order or the confiscation order, as the case may be.

Interlocutory order.

15. —(1) If, on application by a member of the Garda Síochána, it appears to the High Court on evidence tendered by the applicant that a person is in possession or control of funds that were being used or may be intended for use in committing or facilitating the commission of an offence under section 6 or 13, the Court shall, subject to subsection (2) of this section, make an order prohibiting the respondent, any other specified person or any other person having notice of the order from—

(a) disposing of or otherwise dealing with all or, where appropriate, a specified part of the funds, or

(b) diminishing the value of the funds,

unless the Court is satisfied, on evidence tendered by the respondent or any other person, that the funds are not being used or intended for use in committing or facilitating the commission of an offence under section 6 or 13.

(2) The Court shall not make an interlocutory order if it is satisfied that there would be a serious risk of injustice.

(3) Evidence tendered by the applicant for an interlocutory order may consist of or include evidence admissible by virtue of section 18 .

(4) An interlocutory order—

(a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and

(b) shall provide for notice of the order to be given to the respondent and any other person who appears to be or is affected by it unless the Court is satisfied that it is not reasonably possible to ascertain their whereabouts.

(5) On application by the respondent or any other person claiming ownership of the funds concerned, the Court may discharge or, as may be appropriate, vary an order that is in force if satisfied that—

(a) the funds concerned, or a part of them, are not funds that are being used or may be intended for use in committing or facilitating the commission of an offence under section 6 or 13, or

(b) the order causes any other injustice.

(6) On application by a member of the Garda Síochána or any other person, the Court may vary an interlocutory order to such extent as may be necessary to permit—

(a) the enforcement of any order of a court for the payment by the respondent of any sum, including any sum in respect of costs,

(b) the recovery by a county registrar or sheriff of income tax due by the respondent pursuant to a certificate issued by the Collector-General under section 962 of the Taxes Consolidation Act 1997 , together with the fees and expenses provided for in that section, or

(c) the institution of proceedings for, or relating to, the recovery of any other sum owed by the respondent.

(7) Subsection (6) is not to be construed to limit the generality of section 6 of the Act of 1996 as made applicable by section 20 of this Act.

(8) On application at any time by a member of the Garda Síochána, the Court shall discharge an interlocutory order.

(9) Subject to subsections (5), (6) and (12), an interlocutory order continues in force until—

(a) the determination of an application for a disposal order in relation to the funds concerned,

(b) the expiry of the ordinary time for bringing an appeal from that determination, or

(c) if such an appeal is brought, the determination or abandonment of the appeal or any further appeal or the expiry of the ordinary time for bringing any further appeal,

whichever is the latest.

(10) Notice of an application under subsection (1) for an interlocutory order or of an application under subsection (6) for the variation, or under subsection (8) for the discharge, of an interlocutory order shall be given by the applicant to—

(a) the respondent unless the Court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts, and

(b) any other person to whom the Court directs that notice be given.

(11) Notice of an application under subsection (5) to discharge or vary an interlocutory order shall be given by the respondent or other person making the application to—

(a) the member of the Garda Síochána who applied for the interlocutory order, and

(b) such other (if any) persons as the Court may direct.

(12) Where a forfeiture order, or a confiscation order, under the Act of 1994 relates to any funds that are the subject of an interlocutory order that is in force—

(a) the interlocutory order is discharged, if it relates only to the funds that are the subject of the forfeiture order or the confiscation order, as the case may be, and

(b) the interlocutory order is varied by the exclusion from it of the other funds, if it relates to other funds in addition to the funds that are the subject of the forfeiture order or the confiscation order, as the case may be.

Disposal order.

16. —(1) Subject to subsection (2), where an interlocutory order has been in force for not less than 7 years in relation to funds, the High Court may, on application by a member of the Garda Síochána, make an order directing that all or, if appropriate, a specified part of the funds be transferred, subject to such terms and conditions as the Court may specify, to the Minister for Finance or such other person as the Court may determine.

(2) Subject to subsections (6) and (8), the Court shall make a disposal order in relation to any funds that are the subject of an application under subsection (1) unless it is satisfied that the funds are not funds that had been used or were intended for use in committing or facilitating the commission of an offence under section 6 or 13.

(3) The applicant shall give notice of an application under this section to—

(a) the respondent unless the Court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts, and

(b) such other (if any) persons as the Court may direct.

(4) A disposal order operates to deprive the respondent of any rights to the funds to which the order relates and on the making of the order the funds are transferred to the Minister for Finance or other person determined by the Court.

(5) The Minister for Finance may dispose of any funds transferred to him or her under this section and any proceeds of the disposition and any money transferred to that Minister under this section shall be paid into and disposed of by him or her for the benefit of the Exchequer.

(6) In proceedings under subsection (1), before deciding whether to make a disposal order, the Court shall give any person claiming ownership of the funds an opportunity to be heard by the Court and to show cause why the order should not be made.

(7) On application by the respondent or, if the respondent's whereabouts cannot be ascertained, on the Court's own initiative, the Court may, if it considers it appropriate to do so in the interests of justice, adjourn the hearing of an application under subsection (1) for such period not exceeding 2 years as it considers reasonable.

(8) The Court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice.

Ancillary orders and provision in relation to certain profits or gains, etc.

17. —(1) At any time while an interim or interlocutory order is in force, the High Court may, on application by a member of the Garda Síochána, make such orders as it considers necessary or expedient to enable the interim order or interlocutory order to have full effect.

(2) The applicant shall give notice of an application under this section to—

(a) the respondent unless the Court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts, and

(b) such other (if any) persons as the Court may direct.

(3) An interim order, an interlocutory order or a disposal order may be expressed to apply to—

(a) any profit, gain or interest,

(b) any dividend or other payment, or

(c) any other funds,

payable or arising, after the making of the order, in connection with any other funds to which the order relates.

Evidence and proceedings relating to interim and other orders.

18. —(1) A statement made by a member of the Garda Síochána—

(a) in proceedings under section 14 , on affidavit or, if the High Court so directs, in oral evidence, or

(b) in proceedings under section 15 , in oral evidence,

that he or she believes that the respondent is in possession or control of funds that are being used, or may be intended for use, in committing or facilitating the commission of an offence under section 6 or 13 is evidence of the matter if the Court is satisfied that there are reasonable grounds for that belief.

(2) The standard of proof applicable in civil proceedings is the standard required to determine any question arising under section 14 , 15, 16, 17, 19 or 20.

(3) Proceedings under section 14 in relation to an interim order shall be heard otherwise than in public and any proceedings under section 15 , 16, 17 or 19 may, if the respondent or any other party to the proceedings (other than the applicant) so requests and the Court considers it proper, be heard otherwise than in public.

(4) The Court may, if it considers it appropriate to do so, prohibit the publication of such information as it may determine in relation to proceedings under section 14 , 15, 16, 17 or 19, including information relating to—

(a) applications for, the making or refusal of and the contents of orders under any of those sections, and

(b) the persons to whom those orders relate.

Compensation.

19. —(1) An application to the High Court for an order under this section may be made where—

(a) an interim order is discharged or lapses and an interlocutory order in relation to the matter is not made or, if made, is discharged (otherwise than pursuant to section 14 (11)),

(b) an interlocutory order is discharged (otherwise than pursuant to section 15 (12)) or lapses and a disposal order in relation to the matter is not made or, if made, is discharged, or

(c) an interim order or an interlocutory order is varied (otherwise than pursuant to section 14 (11) or 15(12)) or a disposal order is varied on appeal.

(2) On application under subsection (1) by a person who satisfies the Court that—

(a) the person is the owner of funds to which—

(i) an interim order referred to in subsection (1)(a) related,

(ii) an interlocutory order referred to in subsection (1)(b) related,

(iii) an order referred to in subsection (1)(c) had related, but by reason of it being varied by a court, has ceased to relate,

and

(b) the funds are not being used or intended for use in committing or facilitating the commission of an offence under section 6 or 13,

the Court may award to the person such (if any) compensation payable by the Minister for Finance as it considers just in the circumstances in respect of any loss incurred by the person by reason of the order concerned.

(3) The Minister for Finance shall be given notice of, and be entitled to be heard in, any proceedings under this section.

Application of certain provisions of Act of 1996.

20. —For the purposes of this Part, sections 6, 7 and 9 to 15 of the Act of 1996 apply with the following modifications and any other necessary modifications as if an interim order, an interlocutory or a disposal order made under this Part, or an application for such an order, had been made under the Act of 1996:

(a) a reference in any of the applicable provisions of the Act of 1996 to applicant shall be construed as referring to the member of the Garda Síochána who applied to the High Court for the interim order, interlocutory order or disposal order;

(b) a reference in any of the applicable provisions of the Act of 1996 to respondent shall be construed as defined in section 12 of this Act;

(c) a reference in any of the applicable provisions of the Act of 1996 to property shall be construed as referring to funds.

Amendment of section 3 of Act of 1994.

21. —Section 3 of the Act of 1994 is amended as follows:

(a) in subsection (1) by inserting the following:

“ ‘Act of 2005’ means the Criminal Justice (Terrorist Offences) Act 2005;”;

(b) in subsection (1) by substituting the following for the definition of “confiscation order”;

“ ‘confiscation order’ means an order made under section 4(4), 8A(5) or 9(1) of this Act;”;

(c) in subsection (1) by substituting the following for the definition of “defendant”:

“ ‘defendant’ means, for the purposes of any provision of this Act relating to confiscation, and subject to section 23(2)(a) of this Act, a person against whom proceedings for the relevant drug trafficking offence, offence of financing terrorism or other offence have been instituted;”;

(d) in subsection (1) by inserting the following definitions:

“ ‘funds’ has the meaning given by section 12 of the Act of 2005;”;

“ ‘funds subject to confiscation’ has the meaning given by section 8A(2) of this Act;”;

“ ‘offence of financing terrorism’ means an offence under section 13 of the Act of 2005;”;

“ ‘proceeds’, in relation to an offence of financing terrorism, means any funds derived from or obtained, directly or indirectly, through the commission of that offence, including payments and rewards;”;

(e) in subsection (1) by substituting the following for the definition of “property”:

“ ‘property’ includes money and all other property, real or personal, heritable or moveable, including choses-in-action and other intangible or incorporeal property and, in relation to an offence of financing terrorism, includes funds;”;

(f) in subsection (1) by inserting the following definition:

“ ‘value of funds subject to confiscation’ has the meaning given by section 8B(1) of this Act;”;

(g) by inserting the following after subsection (9):

“(9A) For the purposes of the provisions of this Act relating to an offence of financing terrorism, a gift (including a gift made before the commencement of section 8A of this Act) is caught by this Act if—

(a) it was made by the defendant at any time since the beginning of a period of 6 years ending when proceedings in respect of that offence were instituted against the defendant, or

(b) it was made by the defendant at any time and was a gift of property—

(i) which was received by the defendant in connection with an offence of financing terrorism committed by the defendant or another person, or

(ii) which in whole or in part directly or indirectly represented in the defendant's hands funds received by the defendant in connection with an offence of financing terrorism.”;

(h) in subsection (16)(g) by substituting “an application under section 7, 8D or 13 of this Act” for “an application under section 7 or 13 of this Act”;

(i) in subsection (16)(h) by substituting “an application under section 8, 8E or 18 of this Act” for “an application under section 8 or 18 of this Act”.

Amendment of Part II of Act of 1994 — new sections 8A to 8E.

22. —Part II of the Act of 1994 is amended by inserting the following after section 8:

“Confiscation orders relating to offence of financing terrorism.

8A.—(1) Where a person has been sentenced or otherwise dealt with by a court in respect of one or more offences of financing terrorism of which that person has been convicted, the Director of Public Prosecutions may make, or cause to be made, an application to the court to determine whether the convicted person holds funds subject to confiscation.

(2) For the purposes of this Act, funds subject to confiscation are—

(a) funds used or allocated for use in connection with an offence of financing terrorism, or

(b) funds that are the proceeds of such an offence.

(3) An application under subsection (1) of this section may be made at the conclusion of the proceedings at which the person is sentenced or otherwise dealt with or at a later stage in the proceedings.

(4) An application under subsection (1) of this section shall not be made unless it appears to the Director of Public Prosecutions that the person in question holds funds subject to confiscation.

(5) If the court determines that the person in question holds funds subject to confiscation, the court shall—

(a) determine in accordance with section 8C of this Act the amount to be recovered in that person's case by virtue of this section, and

(b) make a confiscation order under this section requiring the person to pay that amount.

(6) The standard of proof applicable in civil proceedings is the standard required to determine a question arising under this Act as to—

(a) whether a person holds funds subject to confiscation, and

(b) the amount to be recovered in that person's case by virtue of this section.

Assessing the value of funds subject to confiscation.

8B.—(1) For the purposes of this Act, the value of the funds that are subject to confiscation is the aggregate of the values of those funds held by the defendant.

(2) For the purpose of assessing the value of funds subject to confiscation, the court shall, subject to subsection (3) of this section, make the following assumptions:

(a) that any funds 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 six years ending when the proceedings were instituted against the defendant,

were received or collected by the defendant, at the earliest time at which the defendant appears to the court to have held them, for use (whether or not used) in connection with the offence of financing terrorism or as the proceeds of such offence;

(b) that any expenditure of the defendant since the beginning of that period was met out of funds subject to confiscation;

(c) that the funds subject to confiscation are held by the defendant free of any other interests in them.

(3) The court shall not make an assumption set out in subsection (2) of this section if—

(a) that assumption is shown to be incorrect in the case of the defendant, or

(b) the court is satisfied that there would be a serious risk of injustice in that case were the assumption made.

(4) Where the court does not apply one or more of the assumptions set out in subsection (2) of this section, it shall state its reasons.

(5) For the purpose of assessing the value of funds subject to confiscation 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 funds subject to confiscation that are shown to the court to have been taken into account in determining the amount to be recovered under the confiscation order.

Amount to be recovered under a confiscation order made under section 8A.

8C.—(1) Subject to subsection (2) of this section, where a confiscation order has been made under section 8A of this Act, 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 funds subject to confiscation.

(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 funds subject to confiscation, 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.

Re-assessment of whether defendant holds funds subject to confiscation.

8D.—(1) This section applies where an application has previously been made to the court under section 8A of this Act and the court has determined that the defendant did not hold funds subject to confiscation.

(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 making the determination referred to in subsection (1) of this section, and

(b) which, had it been considered, the Director of Public Prosecutions believes would have led the court to determine that the defendant held funds subject to confiscation.

(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 held funds subject to confiscation, the court—

(a) shall—

(i) make a fresh determination of whether the defendant holds funds subject to confiscation, and

(ii) make a determination under section 8A(5) of this Act of the amount to be recovered by virtue of that section,

and

(b) may make a confiscation order under section 8A(5) of this Act.

(4) In considering an application under this section, the court may take into account any funds held by the defendant on or after the date of the determination referred to in subsection (1) of this section, but only if the Director of Public Prosecutions shows that the funds relate to an offence of financing terrorism committed on or before that date by the defendant or another person.

(5) In considering any evidence under this section relating to any funds to which subsection (4) applies, the court shall not make the assumptions which would otherwise be required under section 8B of this Act.

(6) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the defendant was convicted.

Revised assessment of funds subject to confiscation.

8E.—(1) This section applies where a court has made a determination (referred to in this section as ‘the current determination’) under section 8A(5) of this Act 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 funds subject to confiscation 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) of this section—

‘assessed value’ means the value of the defendant's funds subject to confiscation as assessed by the court under section 8C(1) of this Act;

‘real value’ means the value of the defendant's funds subject to confiscation which relate to an offence of financing terrorism committed 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 funds subject to confiscation 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 funds subject to confiscation has subsequently increased), the court shall make a fresh determination under section 8A(5) of this Act of the amount to be recovered by virtue of that section.

(5) Any determination under section 8A(5) of this Act 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 8A(5) of this Act by virtue of this section, section 8B(5) of this Act shall not apply in relation to any of the defendant's funds subject to confiscation that were taken into account in respect of the current determination.

(7) In relation to a determination under section 8A(5) of this Act by virtue of this section—

(a) section 3(2) of this Act 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) of this Act shall have effect as if for ‘confiscation order’ there were substituted ‘determination’, and

(c) section 8C(2) of this Act shall have effect as if for ‘confiscation order is made’ there were substituted ‘determination is made’.

(8) The court may take into account any funds held by the defendant on or after the date of the current determination, but only if the Director of Public Prosecutions shows that the funds relate to an offence of financing terrorism committed before that date by the defendant or another person.

(9) In considering any evidence relating to any funds to which subsection (8) applies, the court shall not make the assumptions which would otherwise be required by section 8B of this Act.

(10) If, as a result of making the fresh determination required by subsection (4) of this section, 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 six years beginning with the date on which the defendant was convicted.”.

Amendment of section 9 of Act of 1994.

23. —Section 9 of the Act of 1994 is amended as follows:

(a) in subsection (1) by substituting “, other than a drug trafficking offence or an offence of financing terrorism,” for “, other than a drug trafficking offence,”,

(b) in subsection (2) by substituting “(not being a drug trafficking offence or an offence of financing terrorism)” for “(not being a drug trafficking offence)”, and

(c) in subsection (4) by substituting “, other than a drug trafficking offence or an offence of financing terrorism,” for “other than a drug trafficking offence”.

Amendment of section 10 of Act of 1994.

24. —Section 10 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (1) (amended by section 27 of the Criminal Justice Act 1999 ):

“(1) Where a defendant accepts to any extent an allegation in a statement that—

(a) is tendered by or on behalf of the Director of Public Prosecutions to a court that is engaged in a determination under section 4 of this Act as to whether a person has benefited from drug trafficking or as to any amount to be recovered by virtue of that section or to a court that is considering an application under section 7, 8, 8A, 8D, 8E or 9 of this Act, and

(b) concerns any matter relevant—

(i) to the determination of whether the defendant—

(I) in the case of a conviction for a drug trafficking offence, has benefited from drug trafficking,

(II) in the case of a conviction for an offence of financing terrorism, holds funds subject to confiscation, or

(III) in the case of a conviction for an offence other than a drug trafficking offence or an offence of financing terrorism, has benefited as mentioned in section 9(4) of this Act,

or

(ii) to the assessment of the value of the defendant's proceeds of drug trafficking, the value of the funds subject to confiscation or the value of the defendant's benefits as mentioned in section 9(4) of this Act, as the case may be,

the court may, for the purposes of that determination or assessment, treat the defendant's acceptance as conclusive of the matters to which it relates.”;

(b) by substituting the following for subsection (4):

“(4) A defendant who fails in any respect to comply with a requirement under subsection (3) of this section may be treated for the purposes of this section as accepting every allegation in the statement other than—

(a) any allegation in respect of which the defendant has complied with the requirement, and

(b) any allegation that—

(i) in the case of a conviction for one or more drug trafficking offences, the defendant has benefited from drug trafficking or that any payment or reward was received by the defendant in connection with drug trafficking carried on by the defendant or another person,

(ii) in the case of a conviction for one or more offences of financing terrorism, the defendant holds funds subject to confiscation, or

(iii) in the case of a conviction for one or more offences, other than a drug trafficking offence or an offence of financing terrorism, the defendant benefited from the offence or property was obtained from the defendant as a result of or in connection with the commission of an offence.”;

(c) by substituting the following for subsection (8):

“(8) No acceptance by the defendant under this section of an allegation that—

(a) any payment or other reward was received by the defendant in connection with drug trafficking carried on by the defendant or another person,

(b) the defendant holds funds subject to confiscation, or

(c) the defendant has benefited from an offence other than a drug trafficking offence or an offence of financing terrorism,

shall be admissible in evidence in any proceedings for an offence.”.

Amendment of section 11 of Act of 1994.

25. —Section 11(1) of the Act of 1994 (inserted by section 28 of the Criminal Justice Act 1999 ) is amended by substituting the following for paragraph (b):

“(b) an application has been made to a court under section 7, 8, 8A, 8D, 8E or 9 of this Act.”.

Amendment of section 12 of Act of 1994.

26. —Section 12 of the Act of 1994 is amended as follows:

(a) in subsection (1) by substituting “(but not when considering whether to make such an order under section 4 or 8A of this Act)” for “(but not when considering whether to make an order under section 4 of this Act)”;

(b) in subsection (4) by substituting the following paragraphs for paragraph (b):

“(b) (in the case of a conviction for one or more offences of financing terrorism) the value of the defendant's funds subject to confiscation, or

(c) (in the case of a conviction for an offence or offences other than a drug trafficking offence or an offence of financing terrorism) the value of the defendant's benefit from the offence or offences in respect of which the order may be made.”.

Amendment of section 13 of Act of 1994.

27. —Section 13 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (2):

“(2) The High Court may exercise the powers of a court under section 4, 8A or 9 of this Act to make a confiscation order against the defendant in the case of a conviction for a drug trafficking offence, an offence of financing terrorism or an offence other than a drug trafficking offence or an offence of financing terrorism if—

(a) the Director of Public Prosecutions asks the High Court to proceed under this section, and

(b) the High Court is satisfied that the defendant has died or absconded.”;

(b) by substituting the following for subsection (4):

“(4) The High Court may exercise the powers of a court under section 4, 8A or 9 of this Act to make a confiscation order against the defendant if—

(a) the relevant proceedings have been instituted in respect of a drug trafficking offence, an offence of financing terrorism or an offence other than a drug trafficking offence or an offence of financing terrorism,

(b) the Director of Public Prosecutions asks the High Court to proceed under this section, and

(c) the High Court is satisfied that the defendant has absconded.”;

(c) in subsection (6) by substituting the following for paragraph (a):

“(a) sections 5(2), 8B(2), 10(3) and 10(4) of this Act shall not apply,”.

Amendment of section 17 of Act of 1994.

28. —Section 17 of the Act of 1994 is amended as follows:

(a) in subsection (2) by substituting the following for paragraph (a):

“(a) the value of the defendant's—

(i) proceeds of drug trafficking,

(ii) funds subject to confiscation, or

(iii) benefit as mentioned in section 9(4) of this Act,

as the case may be, in the period by reference to which the determination in question was made (‘the original value’), or”;

(b) in subsection (2) by substituting the following for subparagraph (i):

“(i) may make a fresh determination of the value of the defendant's—

(I) proceeds under section 4 of this Act, in the case of a drug trafficking offence,

(II) funds subject to confiscation under section 8A of this Act, in the case of an offence of financing terrorism, and

(III) benefit under section 9 of this Act, in the case of an offence other than a drug trafficking offence or an offence of financing terrorism, and”;

(c) by inserting the following after subsection (3):

“(3A) For any determination under section 8A of this Act by virtue of this section, section 8B(5) shall not apply in relation to any of the defendant's funds subject to confiscation that were taken into account in determining the original value.”.

Amendment of section 18 of Act of 1994.

29. —Section 18 of the Act of 1994 is amended by substituting the following for subsection (1):

“(1) This section shall have effect where the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of the person's—

(a) proceeds of drug trafficking, in the case of a drug trafficking offence,

(b) funds subject to confiscation, in the case of an offence of financing terrorism, or

(c) benefit obtained from an offence other than a drug trafficking offence or an offence of financing terrorism.”.

Amendment of section 23 of Act of 1994.

30. —Section 23 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (1):

“(1) The powers conferred on the High Court by section 24 of this Act shall be exercisable—

(a) where—

(i) proceedings have been instituted in the State against the defendant for a drug trafficking offence, an offence of financing terrorism or an indictable offence (other than a drug trafficking offence or an offence of financing terrorism) or an application has been made in respect of the defendant under section 7, 8, 8D, 8E, 13 or 18 of this Act,

(ii) the proceedings or application have not been concluded, and

(iii) either a confiscation order has been made or it appears to the Court that there are reasonable grounds for thinking that a confiscation order may be made in the proceedings or that, in the case of an application under section 7, 8, 8D, 8E, 13 or 18 of this Act, the Court will be satisfied as mentioned in section 7(3), 8(4), 8D(3), 8E(4), 13(2), 13(4) or 18(2) of this Act,

or

(b) where—

(i) the Court is satisfied that proceedings are to be instituted against a person for a drug trafficking offence, an offence of financing terrorism or an offence in respect of which a confiscation order might be made under section 9 of this Act or that an application of a kind mentioned in paragraph (a)(i) of this subsection is to be made in respect of a person, and

(ii) it appears to the Court that a confiscation order may be made in connection with the offence or that a court will be satisfied as mentioned in paragraph (a)(iii) of this subsection.”;

(b) in subsection (2) by substituting the following for paragraph (b):

“(b) references in this Act to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (1)(b)(i) of this section for a drug trafficking offence, an offence of financing terrorism or an offence in respect of which a confiscation order might be made under section 9 of this Act.”.

Amendment of section 28 of Act of 1994.

31. —Section 28(3)(a) of the Act of 1994 is amended by substituting the following for subparagraph (ii):

“(ii) an application has been made in respect of the defendant under section 7, 8, 8D, 8E, 13 or 18 of this Act and has not been concluded, or”.

Amendment of section 32 of Act of 1994.

32. —Section 32 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (9A) (inserted by section 14 of the Criminal Justice (Miscellaneous Provisions) Act 1997 ):

“(9A) A designated body shall, in relation to the carrying on of its business, adopt measures to prevent and detect the commission of the following offences:

(a) an offence under section 31 of this Act;

(b) an offence of financing terrorism.”;

(b) in subsection (9B) (inserted by section 14 of the Criminal Justice (Miscellaneous Provisions) Act 1997 ) by substituting the following for paragraph (c):

“(c) the training of directors, other officers and employees for the purpose of enabling them to identify transactions which may relate to the commission of an offence under section 31 of this Act or an offence of financing terrorism, and the giving of instructions to them on how a director, other officer or employee should proceed once he or she has identified such a transaction.”.

Amendment of section 46 of Act of 1994.

33. —Section 46 of the Act of 1994 is amended—

(a) in subsection (1) by inserting the following after paragraph (a):

“(aa) of recovering funds corresponding to funds subject to confiscation under this Act, or”,

and

(b) in subsection (5) by substituting “section 4, 8A or 9 of this Act” for “section 4 or 9 of this Act”.

Amendment of section 47 of Act of 1994.

34. —Section 47(5) of the Act of 1994 is amended by inserting the following after paragraph (b):

“(bb) an offence of financing terrorism, or”.

Amendment of section 55 of Act of 1994.

35. —Section 55 of the Act of 1994 is amended by substituting the following for subsection (2):

“(2) Section 63 of this Act shall have effect as if—

(a) references in that section to drug trafficking included any conduct which is an offence under the law of a country or territory outside the State and would constitute drug trafficking had the conduct occurred in the State,

(b) references in that section to an offence of financing terrorism included any conduct which is an offence under the law of a country or territory outside the State and would constitute an offence of financing terrorism had the conduct occurred in the State or in the circumstances referred to in section 13 (6) of the Act of 2005, and

(c) references in that section to an offence in respect of which a confiscation order might be made under section 9 of this Act included any conduct which is an offence under the law of a country or territory outside the State and would constitute an offence in respect of which a confiscation order might be made under section 9 of this Act had the conduct occurred in the State.”.

Amendment of section 57 of Act of 1994.

36. —Section 57 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (1):

“(1) Any person or body to whom section 32 of this Act applies (including a director, officer or employee of that person or body) and who suspects that—

(a) an offence of financing terrorism, or

(b) an offence under section 31 or 32 of this Act,

in relation to the business of that person or body has been or is being committed shall report that suspicion to the Garda Síochána and to the Revenue Commissioners.”;

(b) by substituting the following for subsection (2):

“(2) A person who—

(a) is charged by law with the supervision of a person or body to whom section 32 of this Act applies, and

(b) suspects that an offence of financing terrorism or an offence under section 31 or 32 of this Act has been or is being committed by that person or body,

shall report that suspicion to the Garda Síochána and to the Revenue Commissioners.”;

(c) in subsection (7)(b) by substituting “in the investigation or prosecution of a drug trafficking offence, an offence of financing terrorism or an offence in respect of which a confiscation order might be made under section 9 of this Act” for “in the investigation or prosecution of a drug trafficking offence or an offence in respect of which a confiscation order might be made under section 9 of this Act”.

Amendment of section 58 of Act of 1994.

37. —Section 58 of the Act of 1994 is amended as follows:

(a) in subsection (1) by substituting “an investigation into drug trafficking, into whether a person holds funds subject to confiscation or into whether a person has benefited from an offence in respect of which a confiscation order might be made” for “an investigation into drug trafficking or into whether a person has benefited from an offence in respect of which a confiscation order might be made”, and

(b) in subsection (2) by substituting “makes any disclosure which is likely to prejudice an investigation arising from a report into whether an offence of financing terrorism or an offence under section 31 or 32 of this Act has been committed shall be guilty of an offence” for “makes any disclosure which is likely to prejudice an investigation arising from a report into whether an offence under section 31 or 32 of this Act has been committed shall be guilty of an offence”.

Amendment of section 61 of Act of 1994.

38. —Section 61(1A) of the Act of 1994 (inserted by section 17 of the Offences against the State (Amendment) Act 1998 ) is amended in paragraph (a) by substituting “, section 27A of the Firearms Act 1964 or section 6 of the Act of 2005” for “or section 27A of the Firearms Act, 1964 ”.

Amendment of section 63 of Act of 1994.

39. —Section 63 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (1):

“(1) A member of the Garda Síochána may apply to a judge of the District Court for an order under subsection (2) of this section in relation to any particular material, or material of a particular description, for the purpose of an investigation into any of the following matters:

(a) drug trafficking;

(b) the commission of an offence of financing terrorism;

(c) the commission of an offence under section 31 of this Act;

(d) whether a person has benefited from drug trafficking;

(e) whether a person holds funds subject to confiscation;

(f) whether a person has benefited from an offence in respect of which a confiscation order might be made under section 9 of this Act.”;

(b) in subsection (4) by substituting the following for paragraph (a):

“(a) that there are reasonable grounds for suspecting that a specified person—

(i) has carried on drug trafficking,

(ii) has committed an offence of financing terrorism,

(iii) has committed an offence under section 31 of this Act,

(iv) has benefited from drug trafficking,

(v) holds funds subject to confiscation, or

(vi) has benefited from an offence in respect of which a confiscation order might be made under section 9 of this Act,”.

Amendment of section 64 of Act of 1994.

40. —Section 64 of the Act of 1994 is amended as follows:

(a) by substituting the following for subsection (1):

“(1) A member of the Garda Síochána may apply to a judge of the District Court for a warrant under this section in relation to specified premises for the purposes of an investigation into any of the following matters:

(a) drug trafficking;

(b) the commission of an offence of financing terrorism;

(c) the commission of an offence under section 31 of this Act;

(d) whether a person has benefited from drug trafficking;

(e) whether a person holds funds subject to confiscation;

(f) whether a person has benefited from an offence in respect of which a confiscation order might be made under section 9 of this Act.”;

(b) in subsection (3) by substituting the following for paragraph (a):

“(a) that there are reasonable grounds for suspecting that a specified person—

(i) has carried on drug trafficking,

(ii) has committed an offence of financing terrorism,

(iii) has committed an offence under section 31 of this Act,

(iv) has benefited from drug trafficking,

(v) holds funds subject to confiscation, or

(vi) has benefited from an offence in respect of which a confiscation order might be made under section 9 of this Act, and”;

(c) in subsection (4) by substituting the following for paragraphs (a) and (b):

“(a) that there are reasonable grounds for suspecting that a specified person—

(i) has carried on drug trafficking,

(ii) has committed an offence of financing terrorism,

(iii) has committed an offence under section 31 of this Act,

(iv) has benefited from drug trafficking,

(v) holds funds subject to confiscation, or

(vi) has benefited from an offence in respect of which a confiscation order might be made under section 9 of this Act, and

(b) that there are reasonable grounds for suspecting that there is on the premises material that—

(i) relates to the specified person or to—

(I) drug trafficking,

(II) an offence of financing terrorism,

(III) an offence under section 31 of this Act, or

(IV) an offence in respect of which a confiscation order might be made under section 9 of this Act,

and

(ii) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, and

(iii) cannot be particularised at the time of the application, and”.

Amendment of section 65 of Act of 1994.

41. —Section 65(1) of the Act of 1994 is amended by substituting “If proceedings are instituted against a person for a drug trafficking offence, an offence of financing terrorism, an offence in respect of which a compensation order might be made under section 9 of this Act, or for more than one of any of those offences,” for “If proceedings are instituted against a person for a drug trafficking offence or offences or for an offence or offences in respect of which a confiscation order might be made under section 9 of this Act”.

Power to make regulations.

42. —(1) This section applies to acts—

(a) that are adopted by the institutions of the European Communities before or after the commencement of this section in accordance with the treaties of those Communities, and

(b) that, in the opinion of the Minister for Finance, are for the purpose of, or will contribute to, combating terrorism through the adoption of specific restrictive measures, directed at persons, groups or entities, for the identification, detection, freezing or seizure of their assets of any kind.

(2) The Minister for Finance may make regulations for enabling provisions of acts to which this section applies to have full effect, including regulations—

(a) requiring the disclosure or reporting of information for the identification or detection of assets referred to in subsection (1)(b), and

(b) respecting the freezing or seizure of such assets or the imposition of other restrictive measures referred to in subsection (1)(b).

(3) A person who contravenes a requirement of a regulation made under subsection (2) is guilty of an offence.

(4) A person guilty of an offence under subsection (3) is liable—

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to—

(i) a fine not exceeding the greater of €10,000,000 or twice the value of the assets in respect of which the offence was committed,

(ii) imprisonment for a term not exceeding 20 years, or

(iii) both such fine and such imprisonment.

(5) Where after being convicted of an offence under subsection (3) a person continues to contravene the requirement to which the offence relates, the person is guilty of a further offence on every day on which the contravention continues and for each such offence is liable to whichever of the following penalties is applicable:

(a) on summary conviction to a fine not exceeding €1,000, if the person was convicted of the offence under subsection (3) on summary conviction;

(b) on conviction on indictment to a fine not exceeding €100,000, if the person was convicted of the offence under subsection (3) on indictment.

(6) The Minister for Finance may make regulations providing for such incidental, supplementary and consequential provisions as appear to that Minister to be necessary for giving effect to regulations under subsection (2).

(7) A person who contravenes a requirement of a regulation made under subsection (6) is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.

(8) Where after being convicted of an offence under subsection (7) a person continues to contravene the requirement to which the offence relates, the person is guilty of a further offence on every day on which the contravention continues and for each such offence is liable on summary conviction to a fine not exceeding €1,000.