Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996.

• Jurisdiction: Ireland
• Citation: IR SI 343/1996
• Year: 1996

S.I. No. 343 of 1996.

CRIMINAL JUSTICE ACT, 1994 (Section 46(6)) REGULATIONS, 1996.

WHEREAS the Government are empowered by section 46 (6) of the Criminal Justice Act, 1994 (No. 15 of 1994), by regulations to make such modifications of that Act as appear to it to be necessary or expedient for the purpose of adapting to confiscation co-operation orders any of the provisions of that Act relating to confiscation orders;

AND WHEREAS it appears to the Government that it is both necessary and expedient to make modifications to sections 2 and 3 and Part III of that Act for that purpose;

AND WHEREAS a draft of these Regulations making those modifications has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House;

NOW, therefore, the Government in exercise of the powers conferred on it by section 46 (6) of the Criminal Justice Act, 1994 , hereby makes the following Regulations: 1. (1) These Regulations may be cited as the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996.

(2) These Regulations shall come into operation on the 3rd day of December, 1996. 2. In these Regulations, the "Act of 1994" means the Criminal Justice Act, 1994 (No. 15 of 1994). 3. In so far as it relates to confiscation co-operation orders, the Act of 1994 is hereby modified, for the purpose of adapting it to such orders, to the extent that sections 2 and 3 and Part III of that Act shall be read as set out in the Schedule to these Regulations.

SCHEDULE

CRIMINAL JUSTICE ACT, 1994

Regulation 3.

Commencement.

2.— The provisions of this Act, as modified for the purpose of adapting it to confiscation co-operation orders, shall come into operation upon the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996.

Interpretation.

3.— (1) In this Act—

"conduct" means conduct corresponding to an offence in respect of which a confiscation order could be made under section 9 of this Act;

"confiscation order" means an order made under section 4(4) or 9(1) of this Act;

"controlled drug" has the same meaning as in section 2 of the Misuse of Drugs Act, 1977 ;

"corresponding law" has the same meaning as in section 20 (2) of the Misuse of Drugs Act, 1977 ;

"dealing with property" shall be construed in accordance with section 24(8) of this Act;

"defendant" means a person against whom a confiscation co-operation order has been made, or a person against whom proceedings which may result in a confiscation co-operation order being made have been, or are to be, instituted in a designated country;

"drug trafficking" means doing or being concerned in any of the following, whether in the State or elsewhere, that is to say —

(a) producing or supplying a controlled drug where the production or supply contravenes any regulations made under section 5 of the Misuse of Drugs Act, 1977 , and in force at the material time (whether before or after the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996) or a corresponding law,

(b) transporting or storing a controlled drug where possession of the drug contravenes section 3 of that Act or a corresponding law,

(c) importing or exporting a controlled drug where the importation or exportation contravenes any such regulations as mentioned in paragraph (a) of this definition or a corresponding law,

(d) doing any act, whether in the State or elsewhere and whether before or after the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996, in relation to property obtained, whether directly or indirectly, from anything done in relation to a controlled drug, that amounts to an offence under section 31 of this Act or would have amounted to such an offence if that section had been in operation at the time when the act was done or, in the case of an act done in a country or territory outside the State, would amount or have amounted to such an offence if done in corresponding circumstances in the State (and for the purpose of this definition the references in subsections (1) and (2) of the said section 31 to removing property from the State shall include references to removing it from the country or territory in question), or

(e) using any ship for illicit traffic in controlled drugs in contravention of section 33 or 34 of this Act;

"drug trafficking offence" means any of the following —

(a) an offence under any regulations made under section 5 of the Misuse of Drugs Act, 1977 , involving the manufacture, production, preparation, importation, exportation, supply, offering to supply, distribution or transportation of a controlled drug,

(b) an offence under section 15 of that Act of possession of a controlled drug for unlawful sale or supply,

(c) an offence under section 20 of that Act (assisting in or inducing the commission outside the State of an offence punishable under a corresponding law),

(d) an offence under the Customs Acts in relation to the importation or exportation of a controlled drug or in relation to the fraudulent evasion of any prohibition, restriction or obligation in relation to such importation or exportation,

(e) an offence under section 31 of this Act in relation to the proceeds of drug trafficking,

(f) an offence under section 33 or 34 of this Act, or

(g) an offence of aiding, abetting, counselling or procuring the commission of any of the offences mentioned in paragraphs (a) to (f)) of this definition or of attempting or conspiring to commit any such offence or inciting another person to do so;

"forfeiture order" means an order made under section 61 of this Act;

"interest", in relation to property, includes right;

"Minister" means the Minister for Justice;

"proceeds of drug trafficking" has the meaning assigned to it by section 5(1)(a) of this Act;

"property" includes money and all other property, real or personal, heritable or moveable, including choses in action and other intangible or incorporeal property;

"realisable property" means—

(a) in relation to a confiscation co-operation order made in respect of specified property, the property which is specified in the order; and

(b) in any other case—

(i) any property held by the defendant, and

(ii) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act,

but does not include property which is the subject of—

(a) an order under section 30 of the Misuse of Drugs Act, 1977 (forfeiture orders), or

(b) an order under section 4 (confiscation orders: drug trafficking offences), section 9 (confiscation orders: offences other than drug trafficking offences) or section 61 (forfeiture orders) of this Act;

"receiver" means a person appointed as a receiver under section 20(2) or 24(7) of this Act;

"restraint order" has the meaning assigned to it by section 24 of this Act;

"value of proceeds of drug trafficking" has the meaning assigned to it by section 5(1)(b) of this Act.

(3) Subject to the provisions of subsections (4) to (12) of this section, for the purposes of this Act the value of property (other than cash) in relation to any person holding the property –

(a) where any other person holds an interest in the property, is –

(i) the market value of the first-mentioned person's beneficial interest in the property, less

(ii) the amount required to discharge any incumbrance on that interest, and

(b) in any other case, is its market value.

(4) References in this Act to the value at any time (referred to in subsection (5) of this section as "the material time") of a person's proceeds of drug trafficking or, as the case may be, of any property obtained by a person as a result of or in connection with conduct are references to –

(a) the value of the said proceeds or property to the recipient when he obtained them or it, adjusted to take account of subsequent changes in the value of money, or

(b) where subsection (5) of this section applies, the value there mentioned,

whichever is the greater.

(5) If at the material time the recipient holds –

(a) the proceeds or property which he obtained (not being cash), or

(b) property which, in whole or in part, directly or indirectly represents in his hands the proceeds or property which he obtained,

the value referred to in subsection (4)(b) of this section is the value to him at the material time of the proceeds or property mentioned in paragraph (a) of this subsection or, as the case may be, of the proceeds or property mentioned in paragraph (b) of this subsection, so far as it so represents the proceeds or property which he obtained.

(6) Subject to subsection (12) of this section, references in this Act to the value at any time (referred to in subsection (7) of this section as "the material time") of a gift caught by this Act or to a payment or reward are references to –

(a) the value of the gift, payment or reward to the recipient when he received it adjusted to take account of subsequent changes in the value of money, or

(b) where subsection (7) of this section applies, the value there mentioned,

whichever is the greater.

(7) Subject to subsection (12) of this section, if at the material time the recipient holds –

(a) the property which he received (not being cash), or

(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received,

the value referred to in subsection (6) of this section is the value to him at the material time of the property mentioned in paragraph (a) of this subsection or, as the case may be, of the property mentioned in paragraph (b) of this subsection so far as it so represents the property which he received.

(9) For the purposes of the provisions of this Act relating to drug trafficking, a gift (including a gift made before the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996) is...