Threatening sex workers with poorhouse instead of jailhouse a 19th century solution to our 21st century problems

14 July 2016

Dáil Éireann, Proceeds of Crime (Amendment) Bill 2016

With one or two caveats I and my Party support this Bill. We agree with the proposal to reduce the threshold value of property subject to      confiscation from €13,000 to €5,000. And we agree with a new, short-term, administrative power of seizure and detention at CAB officer level.

The Proceeds of Crime Act 1996 was an initiative of the Rainbow Government, in response to organised crime in general and the murder of Veronica Guerin in particular. The Act and its sister, the Criminal Assets Bureau Act, have been heavily litigated in the courts and they have has survived robust challenge.

The system of civil restraint and forfeiture of assets that we introduced back then has been adopted in other jurisdictions and it is a genuinely effective weapon in our response to the threat of organised crime.

The vital aspect is that a conviction for an offence is not needed as a pre-condition for a confiscation order. CAB uses purely civil procedures. The CAB’s former legal officer put it well when he said that its fundamental purpose is disruption and discouragement, rather than enforcement of the criminal law.

I think the current proposal to reduce the threshold value of property is a direct response to calls from many of us to see the CAB targeting the proceeds of crime held by middle to lower level actors in local organised crime. As such, I welcome it.

This Bill has come to us from the Seanad and my colleagues in that House had sought to make some amendments. One was to dedicate the proceeds of crime seized by CAB to investment in areas of social and economic deprivation.

I know that if I was speaking from the Government benches I would be briefed to strongly oppose what they call in Merrion Street ‘hypothecated’ spending, by which they mean dedicating the proceeds from a particular source to a specified purpose. Dedicating the proceeds of the plastic bags levy exclusively to environmental matters would be one example.

Of course, it would be impossible to manage the national finances if we had ring-fenced revenues and stand-alone expenditure programmes all over the place. But there is a rationale for them sometimes and Government should not shut its mind completely to examining the merits.

While it may be true that areas with severe social and economic deprivation generate more crime – at least the sort of crime that most attracts our attention – it is also true that people living in the most deprived areas are most likely to be the victims of crime.

Crime, drug and alcohol abuse, public order offences and anti-social behaviour make life a misery for many citizens living in the areas that are most poorly equipped to respond effectively.

I have said here before that there is still no sufficient appreciation, at political and senior Garda level, of the corrosive effect on communities besieged by anti-social behaviour. Whole communities – mostly our most marginalised communities – have suffered in their quality of life due to lawlessness, vandalism and anti-social behaviour. 

Confronted with the true scale of the problems which face these communities, the temptation is to blame others or to reach for a quick-fix solution. But it’s not just an issue of bail, or sentencing. It’s not just that we need more or stricter laws. We need to tackle the phenomenon of criminal, anti-social and anti-community activity – directly, on the ground.

What we are now experiencing is to a large extent a consequence of decades of under-investment in neglected areas. First, we need a legislative response, of course, including measures like this.

Second, and more importantly, we need a policing response – one drawn up in cooperation and agreement with the communities whose neighbourhoods so badly need effective policing. The relationship between the Gardaí and some local communities has deteriorated. We need to rebuild confidence in the relationship between police and community. We need to establish community structures with a degree of control over Garda policy at neighbourhood level. In short, we need to reconnect police and community.

An important aspect of the policing response is to ensure that our policing service is modernised in terms of technology and operations and management. Are the Garda Inspectorate’s reports being taken seriously? Is there a commitment to act on its repeated recommendations? Will we, to take the most relevant example, see the establishment of a Garda Serious and Organised Crime Unit to tackle organised criminal networks?

The Garda Inspectorate describes this as providing an agile, multi-disciplined investigation team to follow the criminal and not just the crime type. They complained in an earlier report that there was very little clarity about what some of the national units do and do not investigate. They say that there are opportunities to amalgamate functions and units and to create clear protocols about what crimes these units will investigate. And they said that the formation of a Serious and Organised Crime Unit would allow several current units to come together, reduce overlap and provide more resilience for investigations.

Perhaps the Tánaiste can tell us if this repeated recommendation has been accepted and if setting up a unit along these lines is underway.

And third, we need a socio-economic response. There is much anger, frustration and annoyance at community level. But, alongside that anger and frustration there is a willingness to be involved in the problem’s resolution.

People have enormous energy and want their community, street, park and city to function and to underpin rather than to diminish their quality of life. This enormous resource must be included in both framing and delivering a solution.

That is why I have placed so much emphasis on the North Inner City Task Force. I have pursued it with the Taoiseach and the Tánaiste but, sadly I am still none the wiser. Who will be on it? When will it be set up? What will its terms of reference be? And will it have any resources?

It is against that backdrop that I invite the Tánaiste to reconsider the proposal to ring-fence the proceeds of crime for investment in the areas of greatest deprivation.

Crime has heaped further affliction on already blighted areas. It would be a visible sign of good intent and practical commitment if the accumulated proceeds of those crimes could be seen to be physically re-invested where it is needed most.

My colleague Senator Ivana Bacik proposed another amendment to this Bill on my Party’s behalf. This was slightly convoluted, since it sought to reference a change in the law which is well signalled but which has not yet been made.

At the moment soliciting in a public place, either by a client or by a prostitute, is unlawful. But the act of buying or selling sex is not unlawful.

The published proposal is that, in future, the purchase of sexual will be unlawful, while the sale will not.

But criminalising the purchase of sexual services has one peculiar consequence. The purchase money will become the proceeds of crime – the crime committed by the purchaser under our new offence.

It will be caught because “proceeds of crime” is defined, under the legislation we are amending today, as meaning any property obtained or received by, or as a result of, or in connection with, the commission of an offence.

So the payment for sexual services will be received by the prostitute as a result of the offence committed by the client.

It seems to me that this new reality has produced a somewhat schizophrenic response on the part of the authorities.

On the one hand, there seems to be agreement across the House that many prostitutes are victims of exploitation. Criminalising these women is an entirely inadequate response. The alternative approach – criminalising the men, while ensuring that women selling sexual services are not criminalised – has met a great deal of approval.

On the other hand, we are now faced with an inevitable and obvious consequence. The authorities will become enabled to seize the assets and money of those engaged in prostitution – everything above €5,000 – as the proceeds of crime.

And I don’t think it’s good enough to say that Gardaí won’t do what the law entitles them to do. As much misery can be caused by threats to use powers as by their actual exercise. And the Tánaiste will not need reminding about how at least one Garda was recently recorded as abusing his position of authority in relation to a vulnerable sex worker.

On this issue, it seems to me that the combination of these two Bills will be to remove one form of tribulation for marginalised and vulnerable women and substitute another. It is no reform to move from threatening prostitutes with imprisonment to threatening them with the poorhouse. It is a 19th century response to our 21st century problems.

I was not heartened by the response of the Tánaiste’s colleague Minister David Stanton when the issue was put to him in the Seanad. He said that our proposal to exempt the purchase of sexual services from criminal conduct for the purpose of proceeds of crime “could lead to sex workers being pressurised into holding moneys as seemingly legitimate fronts for pimps, traffickers and other organised criminals.”

And he went on to argue that to exempt the purchase of sexual services in this limited respect could have effects on international obligations and on the regulatory system for money laundering prevention and detection. And he pointed to the potential for sex workers to be used as legitimate fronts for holding money for pimps and traffickers.

If the Government moves ahead like this on both fronts, it will gain no liberal plaudits by claiming it is ‘turning the table’ on the clients rather than the sex workers in this new measure if the net effect is to make every sex worker’s income and assets – everything above €5,000 – liable to confiscation by the State as the proceeds of crime.

The Tánaiste needs to think again about this.

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