Proceeds of Crime (Amendment) Act 2005
New sections 16A and 16B in Principal Act.
12.—The Principal Act is hereby amended by the insertion of the following sections after section 16:
“Admissibility of certain documents.
16A.—(1) The following documents are admissible in any proceedings under this Act, without further proof, as evidence of any fact therein of which direct oral evidence would be admissible:
(a) a document constituting part of the records of a business or a copy of such a document;
(b) a deed;
(c) a document purporting to be signed by a person on behalf of a business and stating—
(I) that a designated document or documents constitutes or constitute part of the records of the business or is or are a copy or copies of such a document or documents, or
(II) that there is no entry or other reference in those records in relation to a specified matter, and
(ii) that the person has personal knowledge of the matters referred to in subparagraph (i).
(2) Evidence that is admissible by virtue of subsection (1) shall not be admitted if the Court is of the opinion that in the interests of justice it ought not to be admitted.
(3) This section is without prejudice to any other enactment or any rule of law authorising the admission of documentary evidence.
(4) In this section—
(a) an undertaking not carried on for profit, and
(b) a public authority;
‘deed’ means any document by which an estate or interest in land is created, transferred, charged or otherwise affected and includes a contract for the sale of land;
‘document’ includes a reproduction in legible form of a record in non-legible form;
‘public authority’ has the meaning given to it by section 2(1) of the Local Government Act 2001 and includes a local authority within the meaning of that section;
‘records’ includes records in non-legible form and any reproduction thereof in legible form.
Corrupt enrichment order.
16B.—(1) For the purposes of this section—
(a) a person is corruptly enriched if he or she derives a pecuniary or other advantage or benefit as a result of or in connection with corrupt conduct, wherever the conduct occurred;
(b) ‘corrupt conduct’ is any conduct which at the time it occurred was an offence under the Prevention of Corruption Acts 1889 to 2001, the Official Secrets Act 1963 or the Ethics in Public Office Act 1995;
(c) ‘property’ includes—
(i) money and all other property, real or personal, heritable or moveable,
(ii) choses in action and other intangible or incorporeal property, and
(iii) property situated outside the State,
and references to property shall be construed as including references to any interest in property.
(2) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of subsection (5), that a person (a ‘defendant’) has been corruptly enriched, the Court may make an order (a ‘corrupt enrichment order’) directing the defendant to pay to the Minister or such other person as the Court may specify an amount equivalent to the amount by which it determines that the defendant has been so enriched.
(a) the defendant is in a position to benefit others in the exercise of his or her official functions,
(b) another person has benefited from the exercise, and
(c) the defendant does not account satisfactorily for his or her property or for the resources, income or source of income from which it was acquired,
it shall be presumed, until the contrary is shown, that the defendant has engaged in corrupt conduct.
(4) In any proceedings under this section the Court may, on application to it ex parte in that behalf by the applicant, make an order prohibiting the defendant or any other person having notice of the order from disposing of or otherwise dealing with specified property of the defendant or diminishing its value during a period specified by the Court.
(5) Where in any such proceedings a member or an authorised officer states on affidavit or, where the respondent requires the deponent to be produced for cross-examination or the Court so directs, in oral evidence that he or she believes that the defendant—
(a) has derived a specified pecuniary or other advantage or benefit as a result of or in connection with corrupt conduct,
(b) is in possession or control of specified property and that the property or a part of it was acquired, directly or indirectly, as a result of or in connection with corrupt conduct, or
(c) is in possession or control of specified property and that the property or a part of it was acquired, directly or indirectly, with or in connection with the property referred to in paragraph (b),
then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matters referred to in any or all of paragraphs (a) to (c), as may be appropriate.
(6) (a) In any such proceedings, on an application to it in that behalf by the applicant, the Court may make an order directing the defendant to file an affidavit specifying—
(i) the property owned by the defendant, or
(ii) the income and sources of income of the defendant, or
(iii) both such property and such income or sources.
(b) Such an affidavit is not admissible in evidence in any criminal proceedings against the defendant or his or her spouse, except any such proceedings for perjury arising from statements in the affidavit.
(7) Sections 14 to 14C shall apply, with the necessary modifications, in relation to assets or proceeds deriving from unjust enrichment as they apply to assets or proceeds deriving from criminal conduct.
(8) The standard of proof required to determine any question arising in proceedings under this section as to whether a person has been corruptly enriched and, if so, as to the amount of such enrichment shall be that applicable in civil proceedings.
(9) The rules of court applicable in civil proceedings shall apply in relation to proceedings under this section.”.