Criminal Justice Act, 1994
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Interpretation. |
3.—(1) In this Act— | |
“benefited from drug trafficking” shall be construed in accordance with section 4 (5) of this Act; | ||
“benefited from an offence other than a drug trafficking offence” shall be construed in accordance with section 9 (4) 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 ; | ||
“Convention state” means a state other than the State that is a party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on the 20th day of December, 1988; | ||
“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, for the purposes of the provisions 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 or other offence have been instituted; | ||
“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 relevant provision of this Act) 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 relevant provision of this Act, 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; | ||
“enforcement officer” has the meaning assigned to it by paragraph 1 of the First Schedule to this Act; | ||
“forfeiture order” means an order made under section 61 of this Act; | ||
“interest”, in relation to property, includes right; | ||
“Irish ship” has the same meaning as in section 9 of the Mercantile Marine Act, 1955 ; | ||
“Minister” means the Minister for Justice; | ||
“premises” includes any building or any part of a building and any vehicle, vessel or structure; | ||
“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) any property held by the defendant, and | ||
(b) 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 61 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; | ||
“ship” includes any vessel used in navigation; | ||
“value of proceeds of drug trafficking” has the meaning assigned to it by section 5 (1) (b) of this Act. | ||
(2) For the purposes of this Act the amount that might be realised at the time a confiscation order is made against the defendant is— | ||
(a) the aggregate of the values at that time of all the realisable property held by the defendant, less | ||
(b) where there are obligations having priority at that time, the aggregate of the amounts payable in pursuance of such obligations, | ||
together with the aggregate of the values at that time of all gifts caught by 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 the commission of an offence other than a drug trafficking offence 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. | ||
(8) For the purposes of subsection (2) of this section, an obligation has priority at any time if it is an obligation of the defendant to— | ||
(a) pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order, or | ||
(b) pay any sum which would be included among the preferential payments (within the meaning of the Bankruptcy Act, 1988 ) in the defendant's bankruptcy commencing on the date of the confiscation order or winding up under an order of the court made on that date. | ||
(9) For the purposes of the provisions of this Act relating to drug trafficking, a gift (including a gift made before the commencement of section 4 of this Act) is caught by this Act if— | ||
(a) it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him, 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 drug trafficking carried on by him or another, or | ||
(ii) which in whole or in part directly or indirectly represented in the defendant's hands property received by him in that connection. | ||
(10) For the purposes of the provisions of this Act relating to offences other than drug trafficking offences, a gift (including a gift made before the commencement of section 9 of this Act) is caught by this Act if— | ||
(a) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate, and | ||
(b) the court considers it appropriate in all the circumstances to take the gift into account. | ||
(11) The reference in subsection (10) of this section to an offence to which the proceedings for the time being relate includes, where the proceedings have resulted in the conviction of the defendant, a reference to any offence which the court takes into consideration when determining his sentence. | ||
(12) For the purposes of this Act— | ||
(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant, and | ||
(b) in those circumstances, subsections (2) to (11) of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) of this subsection bears to the value of the consideration provided by the defendant. | ||
(13) This Act applies to property wherever situated. | ||
(14) A reference in this Act to an offence includes a reference to an offence committed before the commencement of the provision of this Act in which the reference occurs, but nothing in this Act imposes any duty or confers any power on any court in connection with proceedings against a person for an offence instituted before the commencement of the provision of this Act in which the reference occurs. | ||
(15) A reference in this Act to property obtained, or to a pecuniary advantage derived, in connection with drug trafficking or the commission of an offence includes references to property obtained, or to a pecuniary advantage derived, both in that connection and in some other connection. | ||
(16) The following provisions shall have effect for the interpretation of this Act, namely, | ||
(a) property is held by any person if he holds any interest in it, | ||
(b) references to property held by a person include a reference to property vested in his trustee within the meaning of Part V of the Bankruptcy Act, 1988 or liquidator, | ||
(c) references to an interest held by a person beneficially in property include a reference to an interest which would be held by him beneficially if the property were not so vested, | ||
(d) property is transferred by one person to another if the first person transfers or grants to the other any interest in the property, | ||
(e) proceedings for an offence are instituted— | ||
(i) when a summons or warrant for arrest is issued in respect of that offence, | ||
(ii) when a person is charged with the offence after being taken into custody without a warrant, | ||
and where the application of this section would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times, | ||
(f) proceedings for an offence are concluded— | ||
(i) when the defendant is acquitted on all counts; | ||
(ii) if he is convicted on one or more counts, but no application for a confiscation order is made against him or the court decides not to make a confiscation order in his case; or | ||
(iii) if a confiscation order is made against him in connection with those proceedings, when the order is satisfied, | ||
(g) an application under section 7 or 13 of this Act is concluded— | ||
(i) if the court decides not to make a confiscation order against the defendant, when it makes that decision; or | ||
(ii) if a confiscation order is made against the defendant as a result of that application, when the order is satisfied, | ||
(h) an application under section 8 or 18 of this Act is concluded— | ||
(i) if the court decides not to vary the confiscation order in question, when it makes that decision; or | ||
(ii) if the court varies the confiscation order as a result of the application, when the order is satisfied, | ||
(i) a confiscation order is satisfied when no amount is due under it, | ||
(j) an order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside. | ||
(17) In this Act, a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment (including this Act). |