Criminal Justice (Mutual Assistance) Act 2008

Criminal Justice (Mutual Assistance) Act 2008


Number 7 of 2008


CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008

REVISED

Updated to 17 August 2018


This Revised Act is an administrative consolidation of the Criminal Justice (Mutual Assistance) Act 2008. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.

All Acts up to and including Companies (Statutory Audits) Act 2018 22/2018), enacted 25 July 2018, and all statutory instruments up to and including Criminal Justice (Mutual Assistance) Act 2008 (Designation of States in Accordance with the Protocol of Convention for the Protection of Cultural Property in the Event of Armed Conflict) Order 2018 (S.I. No. 300 of 2018), made 20 July 2018, were considered in the preparation of this revision.

Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to

revisedacts@lawreform.ie.


Number 7 of 2008


CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008

REVISED

Updated to 17 August 2018


Introduction

This Revised Act presents the text of the Act as it has been amended since enactment, and preserves the format in which it was first passed.

Related legislation

Criminal Justice (Mutual Assistance) Acts 2008 and 2015: this Act is one of a group of Acts included in this collective citation ( Criminal Justice (Mutual Assistance) (Amendment) Act 2015) (40/2015), s. 37(2)). The Acts in the group are:

Criminal Justice (Mutual Assistance) Act 2008 (7/2008)

Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015)

Annotations

This Revised Act is annotated and includes textual and non-textual amendments, statutory instruments made pursuant to the Act and previous affecting provisions. A version without annotations, showing only textual amendments, is also available.

An explanation of how to read annotations is available at

www.lawreform.ie/annotations

Material not updated in this revision

Where other legislation is amended by this Act, those amendments may have been superseded by other amendments in other legislation, or the amended legislation may have been repealed or revoked. This information is not represented in this revision but will be reflected in a revision of the amended legislation if one is available.

Where legislation or a fragment of legislation is referred to in annotations, changes to this legislation or fragment may not be reflected in this revision but will be reflected in a revision of the legislation referred to if one is available.

A list of legislative changes to any Act, and to statutory instruments from 1984, may be found linked from the page of the Act or statutory instrument at

www.irishstatutebook.ie.

Acts which affect or previously affected this revision

Data Protection Act 2018 (7/2018)

Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) Act 2017 (36/2017)

Prisons Act 2015 (57/2015)

Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015)

Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014)

Europol Act 2012 (53/2012)

Central Bank Reform Act 2010 (23/2010)

Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (6/2010)

Criminal Justice Act 1994 (15/1994)

All Acts up to and including Companies (Statutory Audits) Act 2018 (22/2018), enacted 25 July 2018, were considered in the preparation of this revision.

Statutory instruments which affect or previously affected this revision

Criminal Justice (Mutual Assistance) Act 2008 (Designation of States in Accordance with the Protocol of Convention for the Protection of Cultural Property in the Event of Armed Conflict) Order 2018 (S.I. No. 300 of 2018)

Criminal Justice (Mutual Assistance) Act 2008 (Commencement) Order 2014 (S.I. No. 541 of 2014)

Criminal Justice (Mutual Assistance) Act 2008 (Section 4) Order 2012 (S.I. No. 222 of 2012)

Criminal Justice (Mutual Assistance) Act, 2008 (Section 4) (No. 2) Order 2011 (S.I. No. 561 of 2011)

Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011)

Criminal Justice (Mutual Assistance) Act 2008 (Section 4) Order 2011 (S.I. No. 60 of 2011)

Criminal Justice (Mutual Assistance) Act 2008 (Section 4) (No. 2) Order 2010 (S.I. No. 372 of 2010)

Criminal Justice (Mutual Assistance) Act 2008 (Section 4) Order 2010 (S.I. No. 42 of 2010)

Criminal Justice (Mutual Assistance) Act 2008 (Commencement) Order 2008 (S.I. No. 338 of 2008)

All statutory instruments up to and including Criminal Justice (Mutual Assistance) Act 2008 (Designation of States in Accordance with the Protocol of Convention for the Protection of Cultural Property in the Event of Armed Conflict) Order 2018 (S.I. No. 300 of 2018), made 20 July 2018, were considered in the preparation of this revision.


Number 7 of 2008


CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008

REVISED

Updated to 17 August 2018


Information about financial transactions for use in the State

Information about financial transactions for use in designated state

Supplementary

Introductory

Requests for interception where technical assistance required

Notifications of other interceptions

Miscellaneous

28. Indirect interception of telecommunications messages.

29. Application of Act of 1993 in relation to this Part.

30. Amendment of section 110 of Act of 1983.

PART 4

Freezing, Confiscation and Forfeiture of Property

Chapter 1

Interpretation

31. Interpretation ( Part 4).

Chapter 2

Freezing of Property

32. Freezing order relating to evidence.

33. Transmission of freezing order for enforcement outside the State.

34. Transmission of external freezing orders to State for enforcement.

35. Recognition and enforcement of external freezing orders.

36. Application, etc., of freezing co-operation orders.

37. Registration of freezing co-operation orders.

38. Exercise of powers under this Chapter by High Court or receiver.

39. Receivers: supplementary provisions.

40. Bankruptcy of defendant, etc.

41. Property subject to freezing co-operation order dealt with by Official Assignee.

42. Application of proceeds of realisation.

43. Winding up of company holding realisable property.

44. Duration of freezing co-operation order.

45. Variation or discharge of freezing co-operation order.

46. Refusal to make freezing co-operation order.

47. Postponement of freezing co-operation order.

48. Subsequent treatment of frozen property.

Chapter 3

Confiscation of Property

49. Request for confiscation of property in designated state.

50. Transmission to State of external confiscation order.

51. Confiscation co-operation order.

51A. External confiscation orders (member states).

51B. Refusal to confiscate.

51C. Postponement of confiscation.

51D. Variation or discharge of confiscation co-operation orders.

51E. Variation or discharge of external confiscation orders from member states.

51F. Termination of external confiscation orders from member states.

51G. Central Authority to inform competent authority.

52. Enforcement, etc., of confiscation co-operation orders.

53. Realisation of property subject to confiscation co-operation order.

54. Interest on sums unpaid under confiscation co-operation orders.

55. Payments under confiscation co-operation orders to be expressed in euro.

56. Exercise of powers under this Chapter by High Court or receiver.

57. Application to confiscation co-operation orders of certain provisions relating to freezing co-operation orders.

57A. Application of provisions on enforcement and realisation to execution of external confiscation order from member states.

Chapter 4

Forfeiture of Property

58. Transmission of external forfeiture order to designated state for enforcement.

59. Transmission of external forfeiture order to State for enforcement.

60. Forfeiture co-operation order.

PART 4A

Financial Penalties

60A. Interpretation.

60B. Request for execution of financial penalty order in member state.

60C. Transmission to State of external financial penalty order.

60D. External financial penalty orders.

60E. Refusal to execute external financial penalty order.

60F. Variation of amount payable under external financial penalty order.

60G. Termination of execution of external financial penalty order.

60H. Central Authority to inform competent authority.

60I. Amounts to accrue to Exchequer.

PART 5

Provision of Evidence

Chapter 1

Interpretation

61. Interpretation ( Part 5).

Chapter 2

Taking of Evidence

62. Evidence from person in designated state.

63. Evidence for use in designated state.

64. Privilege of witnesses.

Evidence of prisoners

Evidence through television link

Evidence by telephone link for use outside State

Search for Evidence

73. Search for evidence at place in designated state.

74. Search for evidence for use outside State (general).

75. Search for particular evidence for use outside State.

75A. Powers of officers of Revenue Commissioners.

Chapter 3

Identification evidence

76. Definitions ( Chapter 3).

77. Identification evidence for use in State.

78. Identification evidence for use outside State.

79. Action on request.

79A. Request pursuant to Article 7 of 2008 Council Decision or that Article as applied by 2009 Agreement with Iceland and Norway.

79B. Application for court order authorising taking of identification evidence from protected person or child under Act of 2008.

79C. Recording of supply and receipt of data for requests pursuant to Article 7 of 2008 Council Decision or that Article as applied by 2009 Agreement with Iceland and Norway.

PART 6

Other Forms of Assistance

Chapter 1

Service of documents

80. Documents for service outside State.

81. Mode of service.

82. Service of documents in State.

Chapter 2

Examining objects and sites

83. Examining objects and sites.

Chapter 3

Restitution

84. Restitution of stolen property from designated state.

85. Request to State for restitution of stolen property.

86. Action on request.

87. Order for restitution.

Chapter 4

Controlled deliveries

88. Interpretation ( Chapter 4).

89. Controlled delivery in designated state.

90. Controlled delivery in State.

91. Amendment of Garda Síochána Act 2005.

92. Application of Criminal Justice (Joint Investigation Teams) Act 2004 in relation to controlled deliveries.

PART 7

Mutual Assistance in Criminal Matters Between the State and the United States of America

93. Definitions ( Part 7).

94. Application in State of Ireland - US Treaty.

PART 7A

Special Intervention Units

94A. Interpretation.

94B. Special intervention unit.

94C. Request to member state for assistance of special intervention unit in dealing with crisis situation.

94D. Request to State for assistance of special intervention unit in dealing with crisis situation.

94E. Operation of special intervention unit.

PART 8

Miscellaneous

95. Exchange of information concerning terrorist offences between Europol, Eurojust and member states.

95A. Eurojust national member.

96. Application and amendment of Criminal Justice (Joint Investigation Teams) Act 2004.

97. Presence of representatives of requesting state at execution of request.

98. Presence of members of Garda Síochána at execution of request in designated state.

99. Use of information or evidence obtained in response to request in designated state.

100. Disclosure prejudicing investigation.

101. Liability of officers of body corporate.

102. Evidence in proceedings (general).

103. Provisional measures.

104. Recognition of third party rights.

105. Amendment of Criminal Justice Act 1994.

106. Amendment of section 8(7) of Criminal Assets Bureau Act 1996.

107. Personal data protection.

108. Exercise of powers by judge of District Court outside district court district.

109. Regulations.

110. Expenses.

111. Laying of orders or regulations before Houses of Oireachtas.

SCHEDULE 1

Text of 2000 Convention

SCHEDULE 2

Text of 2001 Protocol

SCHEDULE 3

Text of Agreement with Iceland and Norway

SCHEDULE 3A

Text of Agreement between the European Union and Japan on Mutual Legal Assistance in Criminal Matters

SCHEDULE 4

Text of Articles 49 and 51 of Schengen Convention

SCHEDULE 5

Text of Framework Decision

SCHEDULE 5A

Text of 2005 Framework Decision

SCHEDULE 5B

Text of 2006 Framework Decision

SCHEDULE 6

Text of Title III of EC/Swiss Confederation Agreement

SCHEDULE 7

Text of 2005 Council Decision

SCHEDULE 7A

Text of the 2008 Council Decision (special intervention units)

SCHEDULE 7B

Text of 2009 Council Decision

SCHEDULE 8

PART 1

Text of 1959 Convention

PART 2

Text of First Additional Protocol to 1959 Convention

SCHEDULE 9

Text of Second Additional Protocol to 1959 Convention

SCHEDULE 10

Text of Chapter IV of 2005 Convention

SCHEDULE 11

Text of Articles 13, 14, 18, 19 and 20 of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000.

SCHEDULE 12

Text of Articles 46, 49, 50 and 54 to 57 of the United Nations Convention against Corruption, done at New York on 31 October 2003

SCHEDULE 13

Text of EU/US Agreement on Mutual Legal Assistance

SCHEDULE 14

Text of Ireland/US Treaty of 18 January 2001, as applied by Instrument of 14 July 2005


Acts Referred to

Bail Act 1997

1997, No. 16

Bankers’ Books Evidence Act 1879

42 & 43 Vic., c. 11

Bankruptcy Act 1988

1988, No. 27

Central Bank Act 1971

1971, No. 24

Children Act 2001

2001, No. 24

Companies Act 1963

1963, No. 33

Companies Acts 1963 to 2006

Courts (Supplemental Provisions) Act 1961

1961, No. 39

Criminal Assets Bureau Act 1996

1996, No. 31

Criminal Justice Act 1994

1994, No. 15

Criminal Justice Act 2006

2006, No. 26

Criminal Justice (Joint Investigation Teams) Act 2004

2004, No. 20

Criminal Justice (Miscellaneous Provisions) Act 1997

1997, No. 4

Criminal Justice (Terrorist Offences) Act 2005

2005, No. 2

Criminal Justice (Theft and Fraud Offences) Act 2001

2001, No. 50

Criminal Justice (United Nations Convention against Torture) Act 2000

2000, No. 11

Data Protection Act 1988

1988, No. 25

Data Protection Acts 1988 and 2003

Dentists Act 1985

1985, No. 9

European Arrest Warrant Act 2003

2003, No. 45

Europol Act 1997

1997, No. 38

Extradition Acts 1965 to 2001

Extradition (Amendment) Act 1994

1994, No. 6

Extradition (European Convention on the Suppression of Terrorism) Act 1987

1987, No. 1

Extradition (European Union Conventions) Act 2001

2001, No. 49

Garda Síochána Act 2005

2005, No. 20

Immigration Act 1999

1999, No. 22

Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993

1993, No. 10

Medical Practitioners Act 1978

1978, No. 4

Misuse of Drugs Act 1977

1977, No. 12

Nurses Act 1985

1985, No. 18

Official Secrets Act 1963

1963, No. 1

Police (Property) Act 1897

60 & 61 Vic., c. 30

Postal and Telecommunications Services Act 1983

1983, No. 24

Prisons Act 1970

1970, No. 11

Prisons Act 1972

1972, No. 7

Probation of Offenders Act 1907

7 Edw. 7., c. 17

Registration of Deeds and Title Act 2006

2006, No. 12

Registration of Deeds and Title Acts 1964 and 2006

Statutory Declarations Act 1938

1938, No. 37

Transfer of Sentenced Prisoners Act 1995

1995, No. 16


Number 7 of 2008


CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008

REVISED

Updated to 17 August 2018


AN ACT—

( a) TO ENABLE EFFECT TO BE GIVEN IN THE STATE TO CERTAIN INTERNATIONAL AGREEMENTS, OR PROVISIONS OF SUCH AGREEMENTS, BETWEEN THE STATE AND OTHER STATES RELATING TO MUTUAL ASSISTANCE IN CRIMINAL MATTERS;

( b) TO REPEAL AND RE-ENACT, WITH AMENDMENTS, PART VII (INTERNATIONAL CO-OPERATION) OF THE CRIMINAL JUSTICE ACT 1994;

AND TO PROVIDE FOR RELATED MATTERS.

[28 th April, 2008]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

Preliminary and General

1.

Short title and commencement.

1.— (1) This Act may be cited as the Criminal Justice (Mutual Assistance) Act 2008.

(2) This Act shall come into operation on such day or days as may be appointed by order or orders of the Minister, either generally or with reference to a particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

Annotations:

Editorial Notes:

E1

Power pursuant to section exercised (1.12.2014) by Criminal Justice (Mutual Assistance) Act 2008 (Commencement) Order 2014 (S.I. No. 541 of 2014).

2. The 1st day of December 2014 is appointed as the day on which Part 3 of the Criminal Justice (Mutual Assistance) Act 2008 (No. 7 of 2008) comes into operation.

E2

Power pursuant to section exercised (1.09.2008) by Criminal Justice (Mutual Assistance) Act 2008 (Commencement) Order 2008 (S.I. No. 338 of 2008).

2. The 1st day of September 2008 is appointed as the day on which the Criminal Justice (Mutual Assistance) Act 2008 (No. 7 of 2008), other than Part 3, comes into operation.

2.

Interpretation (general).

2.— (1) In this Act, except where the context otherwise requires—

“Act of 1994” means the Criminal Justice Act 1994;

“Agreement with Iceland and Norway” means the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the 2000 Convention and 2001 Protocol, done at Brussels on 19 December 2003;

F1 [ Agreement with Japan means the Agreement between the European Union and Japan on mutual legal assistance in criminal matters, done at Brussels on 30 November 2009 and at Tokyo on 15 December 2009; ]

“Articles 49 and 51”, in relation to the Schengen Convention, means those Articles of the Convention, as applied to the State by Council Decision (2002/192/EEC) of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis, but does not include paragraph (a) (repealed by Article 2.2 of the 2000 Convention) of Article 49;

“authority” includes a person;

“1959 Convention” means the European Convention on Mutual Assistance in Criminal Matters, done at Strasbourg on 20 April 1959, and includes the Additional Protocol of 17 March 1978 thereto;

F2 [ 1999 Protocol means the Protocol to the Convention for the Protection of Cultural Property in the event of Armed Conflict, done at The Hague on 26 March 1999; ]

“2000 Convention” means the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, done at Brussels on 29 May 2000;

F1 [ 2003 Framework Decision means Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence 10 ; ]

“2005 Convention” means the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, done at Warsaw on 16 May 2005;

“2005 Council Decision” means Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and co-operation concerning terrorist offences;

F1 [ 2005 Framework Decision means Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of mutual recognition to financial penalties 11 ; ]

F1 [ 2006 Framework Decision means Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders 12 ; ]

F3 [ 2008 Council Decision means Council Decision 2008/615/JHA of 23 June 2008 9 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime; ]

F1 [ 2008 Council Decision (special intervention units) means Council Decision 2008/617/JHA of 23 June 2008 on the improvement of cooperation between special intervention units of the member states of the European Union in crisis situations 7 ; ]

F3 [ 2009 Agreement with Iceland and Norway means the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto, done at Stockholm on 26 November 2009 and at Brussels on 30 November 2009; 10

F1 [ 2009 Council Decision means Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime 8 ; ]

F1 [ 2010 Council Decision means Council Decision 2010/616/EU of 7 October 2010 on the conclusion of the Agreement between the European Union and Japan on mutual legal assistance in criminal matters 9 ; ]

“1977 Terrorism Convention” means the European Convention on the Suppression of Terrorism, done at Strasbourg on 27 January 1977;

“Central Authority” means the authority mentioned in section 8 ;

“criminal conduct” means any conduct—

( a) which constitutes an offence, or

( b) which occurs in a designated state and would, if it occurred in the State, constitute an offence;

“criminal investigation”—

( a) means an investigation into whether a person has committed an offence (within the meaning of the relevant Part) under the law of the State or a designated state in respect of which, where appropriate, a request for assistance may be made under the relevant international instrument, and

( b) includes an investigation into whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds;

“criminal proceedings” means proceedings, whether in the State or a designated state, against a person for an offence and includes—

( a) proceedings to determine whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds,

( b) proceedings concerning measures relating to—

(i) the deferral of delivery or suspension of enforcement of a sentence or preventive measure,

(ii) conditional release, or

(iii) a stay or interruption of enforcement of a sentence or preventive measure,

( c) in relation to requests for assistance by a requesting authority in a member state—

(i) without prejudice to subsection (2)(b) of sections 74 and 75 (requests for evidence or evidential material), proceedings brought by an administrative authority in respect of conduct which is punishable under the law of the State or that state or of both of them, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters,

(ii) proceedings in claims for damages arising from wrongful prosecution or conviction,

(iii) clemency proceedings,

(iv) civil actions joined to criminal proceedings, as long as the criminal court concerned has not taken a final decision in the criminal proceedings, and

(v) proceedings in respect of measures relating to—

(I) the deferral of delivery or suspension of enforcement of a sentence or preventive measure,

(II) conditional release, or

(III) a stay or interruption of enforcement of a sentence or preventive measure,

and

( d) in relation to requests for assistance by a requesting authority in a designated state (other than a member state), without prejudice to subsection (3) of sections 74 and 75 proceedings brought by an administrative authority in respect of conduct which is punishable under the law of the State or that state or of both of them, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters;

“designated state” means a member state and any other state designated under section 4 ;

“EC/Swiss Confederation Agreement” means the Co-operation Agreement between the European Community and its member states, of the one part, and the Swiss Confederation, of the other part, to combat fraud and any other illegal activity to the detriment of their financial interests, done at Luxembourg on 26 October 2004;

“evidence” means oral evidence or, as appropriate, any document or thing which could be produced as evidence in criminal proceedings, including any information in non-legible form which could be converted into permanent and legible form for the purposes of those proceedings;

F4 [ ]

“imprisonment” includes detention and, in relation to a designated state, any other form of deprivation of liberty;

“international instrument” means any of the following agreements, or provisions of agreements, between the State and other states or another state in relation to mutual assistance in criminal matters:

( a) the 2000 Convention;

( b) the 2001 Protocol;

( c) the Agreement with Iceland and Norway;

F5 [ (ca) the Agreement with Japan; ]

( d) Articles 49 and 51 of the Schengen Convention;

( e) F6 [ 2003 Framework Decision ];

F5 [ (ea) the 2005 Framework Decision;

(eb) the 2006 Framework Decision; ]

( f) Title III of the EC/Swiss Confederation Agreement;

( g) the 2005 Council Decision;

F3 [ (ga) Article 7 of the 2008 Council Decision;

(gb) Article 1 of the 2009 Agreement with Iceland and Norway insofar as it applies Article 7 of the 2008 Council Decision in bilateral relations between Iceland or Norway and each member state of the European Union and in relations between Iceland and Norway; ]

F5 [ (gc) the 2008 Council Decision (special intervention units);

(gd) the 2009 Council Decision; ]

( h) the 1959 Convention;

( i) the Second Additional Protocol;

( j) Chapter IV of the 2005 Convention;

( k) Articles 13, 14, 18, 19 and 20 of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000;

( l) Articles 46, 49, 50 and 54 to 57 of the United Nations Convention against Corruption, done at New York on 31 October 2003;

F2 [ ( la ) the 1999 Protocol; ]

F7 [ (m) a bilateral agreement between the State and a designated state, or a multilateral agreement between the State and other designated states, for the provision of such assistance; and ]

( n) any reservation or declaration made in accordance with such an instrument;

“member state” means—

F8 [ (a) a member state of the European Union (other than the State), for the purposes of mutual assistance under the provisions of the 2000 Convention, 2001 Protocol, Articles 49 and 51 of the Schengen Convention, 2003 Framework Decision, 2005 Framework Decision, 2005 Council Decision, Article 7 of the 2008 Council Decision, Article 1 of the 2009 Agreement with Iceland and Norway insofar as it applies Article 7 of the 2008 Council Decision in bilateral relations between Iceland or Norway and each member state of the European Union (other than the State) and in relations between Iceland and Norway, 2008 Council Decision (special intervention units), and ]

( b) Iceland and Norway or any other designated state, for the purposes of mutual assistance under any of those provisions;

“Minister” means the Minister for Justice, Equality and Law Reform;

“offence”—

( a) means an offence in respect of which a request for mutual assistance may be made under the relevant international instrument,

( b) includes a revenue offence, if or to the extent that the relevant international instrument or the law of the designated state concerned provides for mutual assistance in respect of such an offence, but

( c) does not include a political offence;

“place” means a physical location and includes—

( a) a dwelling, residence, building or abode,

( b) a site,

( c) a vehicle, whether mechanically propelled or not,

( d) a vessel, whether sea-going or not,

( e) an aircraft, whether capable of operation or not, and

( f) a hovercraft;

“political offence”, except in Part 2

( a) includes an offence connected with a political offence,

( b) does not include any offence in respect of which a person may be surrendered to another state under the European Arrest Warrant Act 2003 or the Extradition Acts 1965 to 2001;

“prison” means a place of custody administered by or on behalf of the Minister (other than a Garda Síochána station) and includes—

( a) F9 [ ]

( b) a place provided under section 2 of the Prisons Act 1970, and

( c) a place specified under section 3 of the Prisons Act 1972;

“property”, except in Part 4 , includes—

( a) money and all other property, real or personal, movable or immovable,

( b) a chose in action and any other intangible or incorporeal property,

( c) proceeds of the disposal of property, and

( d) evidence;

“2001 Protocol” means the Protocol to the 2000 Convention, done at Luxembourg on 16 October 2001;

“relevant international instrument” means the international instrument in accordance with which a request for assistance is made;

“request” means a request for assistance which is made by a requesting authority under and in accordance with a relevant international instrument;

“requesting authority” means—

( a) a court or tribunal exercising jurisdiction in criminal proceedings in a designated state and making a request, or

( b) any other authority in that state appearing to the Minister to have the function of making the request;

“revenue offence”—

( a) means an offence under the law of the State or a designated state in connection with taxes, duties, customs or exchange regulation,

( b) includes such an offence under the law of a designated state irrespective of whether the law of the State provides for taxes, duties, customs or exchange regulation of the same kind as that state provides, but

( c) does not include—

(i) an offence involving the use or threat of force or perjury or the forging of a document issued under statutory authority, or

(ii) an offence alleged to have been committed by an officer of the Revenue of that state in his or her capacity as such officer;

“Schengen Convention” means the Convention, signed in Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985;

“Second Additional Protocol” means the Second Additional Protocol of 8 November 2001 to the 1959 Convention;

“state”, in relation to a state other than the State, includes a territory, whether in the state or outside it—

( a) for whose external relations the state or its government is wholly or partly responsible, and

( b) to which the relevant international instrument applies or whose law provides for mutual assistance in criminal matters,

and “designated state” and “member state” are to be construed accordingly.

(2) Reservations made pursuant to Article 13 of the 1977 Terrorism Convention do not apply to mutual assistance in criminal matters between member states.

(3) The following provisions of this Act give effect to Council Decision (2002/192/EC) of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis, in so far as those provisions relate to mutual assistance in criminal matters:

( a) paragraph (c) of the definition of “criminal proceedings” in subsection (1);

( b) subsections (1) and (2) of sections 74 and 75 ;

( c) section 82(1)(b).

(4) Judicial notice shall be taken of a relevant international instrument.

(5) When interpreting any provision of this Act—

( a) a court may consider the relevant international instrument and any explanatory document issued in connection with it, and

( b) give the instrument and any such document such weight as is appropriate in the circumstances.

(6) For convenience of reference—

( a) Schedule 1 sets out the English text of the 2000 Convention,

( b) Schedule 2 sets out the English text of the 2001 Protocol,

( c) Schedule 3 sets out the English text of the Agreement with Iceland and Norway,

F10 [ (ca) Schedule 3A sets out the English text of the Agreement with Japan, ]

( d) Schedule 4 sets out the English text of Articles 49 and 51 of the Schengen Convention,

( e) Schedule 5 sets out the English text of the F11 [ 2003 Framework Decision ],

F10 [ (ea) Schedule 5A sets out the English text of the 2005 Framework Decision,

(eb) Schedule 5B sets out the English text of the 2006 Framework Decision, ]

( f) Schedule 6 sets out the English text of Title III of the EC/Swiss Confederation Agreement,

( g) Schedule 7 sets out the English text of the 2005 Council Decision,

F10 [ (ga) Schedule 7A sets out the English text of the 2008 Council Decision (special intervention units),

(gb) Schedule 7B sets out the English text of the 2009 Council Decision. ]

( h) Schedule 8 sets out the English text of the 1959 Convention and the First Additional Protocol thereto,

( i) Schedule 9 sets out the English text of the Second Additional Protocol to the 1959 Convention,

( j) Schedule 10 sets out the English text of Chapter IV of the 2005 Convention,

( k) Schedule 11 sets out the English text of Articles 13, 14, 18, 19 and 20 of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000,

( l) Schedule 12 sets out the English text of Articles 46, 49, 50 and 54 to 57 of the United Nations Convention against Corruption, done at New York on 31 October 2003,

( m) Schedule 13 sets out the English text of the Agreement on Mutual Legal Assistance between the European Union and the United States of America, done at Washington D.C. on 25 June 2003, and

( n) Schedule 14 sets out the English text of the Treaty between the Government of Ireland and the Government of the United States on Mutual Assistance in Criminal Matters, done at Washington D.C. on 18 January 2001, as applied by the Instrument contemplated by Article 3(2) of the said Agreement of 25 June 2003 and done at Dublin on 14 July 2005.

Annotations:

Amendments:

F1

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 2(a)(iv), S.I. No. 11 of 2016.

F2

Inserted (17.08.2018) by Protection of Cultural Property in the event of Armed Conflict (Hague Convention) Act 2017 (36/2017), s. 9, S.I. No. 299 of 2018.

F3

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 128(a), (b), S.I. No. 508 of 2015.

F4

Deleted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 2(a)(iii), S.I. No. 11 of 2016.

F5

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 2(a)(i)(I), (III) and (IV), S.I. No. 11 of 2016.

F6

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 2(a)(i)(II), S.I. No. 11 of 2016.

F7

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 2(a)(i)(V), S.I. No. 11 of 2016.

F8

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 2(a)(ii), S.I. No. 11 of 2016.

F9

Deleted (7.04.2017) by Prisons Act 2015 (57/2015), s. 21, S.I. No. 134 of 2017.

F10

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 2(b)(i), (iii), (iv), S.I. No. 11 of 2016.

F11

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 2(b)(ii), S.I. No. 11 of 2016.

Editorial Notes:

E3

Previous affecting provision: para. (a) of definition of “member state” substituted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 128(c), S.I. No. 508 of 2015; substituted as per F-note above.

10 OJ L 196, 02.08.2003, p.45.

11 OJ L 76, 22.3.2005, p.16.

12 OJ L 328, 24.11.2006, p.59.

7 OJ L 210, 06.08.2008, p.73.

8 OJ L 138, 04.06.2009, p.14.

9 O.J. No. L210, 6.8.2008, p.1.

3.

General restriction on providing assistance.

3.— (1) Assistance shall be refused—

( a) if the Minister considers that providing assistance would be likely to prejudice the sovereignty, security or other essential interests of the State or would be contrary to public policy ( ordre public),

( b) if there are reasonable grounds for believing—

(i) that the request concerned was made for the purpose of prosecuting or punishing a person on account of his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation,

(ii) that providing assistance—

(I) may prejudice a person’s position for any of those reasons, or

(II) may result in the person being subjected to torture or to any other contravention of the European Convention on Human Rights,

( c) if the request is not in accordance with the relevant international instrument, or

( d) if, and for as long as, the provision of assistance would prejudice a criminal investigation, or criminal proceedings, in the State,

and may be refused on any other ground of refusal of assistance specified in the relevant international instrument.

(2) In this section, “torture” has the meaning given to it by the Criminal Justice (United Nations Convention against Torture) Act 2000.

4.

Designated state.

4.— The Minister for Foreign Affairs, after consultation with the Minister, may by order designate a state (other than a member state) for the purposes of mutual assistance between the State and that state under this Act or specified Parts or provisions of it in accordance with the relevant international instrument.

Annotations:

Editorial Notes:

E4

Power pursuant to section exercised (17.08.2018) by Criminal Justice (Mutual Assistance) Act 2008 (Designation of States in Accordance with the Protocol of Convention for the Protection of Cultural Property in the Event of Armed Conflict) Order 2018 (S.I. No. 300 of 2018), in effect as per art. 2.

E5

Power pursuant to section exercised (21.06.2012) by Criminal Justice (Mutual Assistance) Act 2008 (Section 4) Order 2012 (S.I. No. 222 of 2012), in effect as per art. 2.

E6

Power pursuant to section exercised (1.11.2011) by Criminal Justice (Mutual Assistance) Act 2008 (Section 4) (No. 2) Order 2011 (S.I. No. 561 of 2011), in effect as per art. 2.

E7

Power pursuant to section exercised (4.02.2011) by Criminal Justice (Mutual Assistance) Act 2008 (Section 4) Order 2011 (S.I. No. 60 of 2011), in effect as per art. 2.

E8

Power pursuant to section exercised (26.07.2010) by Criminal Justice (Mutual Assistance) Act 2008 (Section 4) (No. 2) Order 2010 (S.I. No. 372 of 2010), in effect as per art. 2. It appears that S.I. No. 372 of 2010 may have been intended to be revoked (21.06.2012) by S.I. No. 222 of 2012, art. 5, which states the order as dated 2012 (“Criminal Justice (Mutual Assistance) Act 2008 (Section 4) Order 2012”). However there is no such (No. 2) order in 2012 and S.I. No. 222 of 2012 largely supersedes the 2010 instrument.

E9

Power pursuant to section exercised (1.02.2010) by Criminal Justice (Mutual Assistance) Act 2008 (Section 4) Order 2010 (S.I. No. 42 of 2010), in effect as per art. 2.

5.

Certain Articles of 2000 Convention and Second Additional Protocol to have force of law.

5.— (1) Subject to the provisions of this Act, Articles 4 (formalities and procedures in the execution of requests) and 6 (transmission of requests) of the 2000 Convention and Articles 4 (channels of communication) and 8 (procedure) of the Second Additional Protocol have the force of law in their application to the State.

(2) For the purposes of subsection (1)

( a) references in the Articles mentioned in that subsection to a requested state or requested party or to authorities, judicial authorities or competent authorities of that state or party shall be construed as references to, where appropriate, the Central Authority or the judge or court concerned, and

( b) references to those Articles are references to the Articles as modified by any reservation or declaration made in relation to them.

6.

Requests (general).

6.— (1) Subject to the provisions of this Act concerning particular requests, the relevant international instrument concerned has effect in the State in relation to—

( a) the form of the requests and the information they are to provide,

( b) the action that may be taken where a request does not comply with the provisions of the instrument or where the information provided is not sufficient to enable the request to be dealt with,

( c) any restrictions in the instrument in relation to the refusal of particular requests,

( d) any requirements in the instrument relating to the protection, disclosure, use or transmission of information or evidence received under it,

( e) the formalities and procedures in dealing with requests, unless those formalities and procedures are contrary to the fundamental principles of the law of the State, and

( f) the transmission and mode of transmission of requests, including, where so provided for in the instrument, transmissions via the International Criminal Police Organisation (Interpol) in urgent cases.

(2) This Act applies only to requests made after the relevant international instrument has entered into force, or, as the case may be, has been applied, between the State and the designated state concerned.

(3) Requests received and not executed before the date on which they would fall to be dealt with under this Act shall be dealt with, or continue to be dealt with, as if this Act had not been passed.

(4) Requests shall—

( a) be addressed to the Central Authority, unless the relevant international instrument provides otherwise,

( b) where appropriate, indicate the relevant international instrument under which the request is being made, and

( c) be in writing or in any form capable of producing a written record under conditions allowing their authenticity to be established.

(5) Requests to a designated state and any supporting or related documents shall be accompanied, where appropriate, by a translation of the requests and of any such documents, or of the material parts of them, into the official language or one of the official languages of that state, unless it is known that such a translation is not required by the appropriate authority in the designated state concerned.

(6) Requests from a designated state and any supporting or related documents, if not in Irish or English, shall be accompanied by a translation into either of those languages of the requests and of any such documents or the material parts of them.

(7) The Central Authority may—

( a) accept requests and any supporting or related documents as evidence of the matters mentioned in them unless it has information to the contrary, and

( b) seek such additional information from the requesting authority concerned as may be necessary to enable a decision to be taken on a request.

(8) Action on a request may be postponed by the Minister if the action would prejudice criminal proceedings or a criminal investigation.

(9) Before refusing a request or postponing action on it the Minister shall, where appropriate and having consulted the requesting authority, consider whether the request may be granted partially or subject to such conditions as he or she considers necessary.

(10) Reasons shall be given for any such refusal or postponement.

(11) The Minister shall also inform a requesting authority of any circumstances that make it impossible to comply with the request or are likely to delay compliance significantly.

7.

Transmission of evidence to designated state (general).

7.— (1) Evidence obtained in the State in compliance with a request shall be transmitted to the designated state concerned in accordance with the directions of the Minister.

(2) If any such evidence is to be accompanied by a certificate, affidavit or other verifying document, the judge concerned or, as the case may be, the appropriate member of the Garda Síochána or officer of the Revenue Commissioners, shall supply the required document for transmission to the designated state.

(3) Where the evidence consists of a document, the original or a copy shall be transmitted and, where it consists of any other item, the item itself or a description, photograph or other representation of it shall be transmitted, as may be necessary to comply with the request.

8.

Central Authority.

8.— (1) The Minister is the Central Authority for the purposes of this Act.

(2) The Central Authority has the function of receiving, transmitting and otherwise dealing with requests, except those made under Part 3 , and of co-operating, in accordance with the relevant international instrument, with corresponding persons or bodies in designated states in relation to requests received from them.

(3) The Minister may, if he or she considers it appropriate, designate persons to perform specified functions of the Central Authority, and different persons may be so designated to perform different such functions.

(4) While such a designation is in force, a reference in this Act to the Central Authority, in so far as it relates to the performance of a function specified in the designation, is to be construed as a reference to the person so designated to perform that function.

(5) The Minister may amend or revoke a designation.

(6) The Minister shall, by notice in writing, inform the General Secretariat of the Council of the European Union of the names of any persons designated for the time being under this section.

9.

Spontaneous exchange of information.

9.— (1) Without prejudice to section 100 , the Director of Public Prosecutions, Commissioner of the Garda Síochána or Revenue Commissioners (in this section referred to as the “providing authority”) may, in accordance with the relevant international instrument and without receiving a request to that effect, communicate information to a competent authority in a designated state either relating to matters which might give rise to such a request or for the purpose of current criminal investigations or criminal proceedings or of initiating either of them.

(2) The providing authority may impose conditions on the use by the competent authority of the information so communicated.

(3) Subsection (2) does not apply in relation to the competent authority of a designated state which has made a declaration under paragraph 4 of Article 11 of the Second Additional Protocol unless, as required by such a declaration, the authority has received prior notice of the nature of the information to be communicated and has agreed to its being communicated.

(4) Any conditions imposed by a competent authority in a designated state on the use of information communicated by it to the providing authority shall be complied with pursuant to the relevant international instrument.

(5) In this section references to a competent authority in a designated state are references to the authority in such a state appearing to the providing authority to be the appropriate authority for receiving or communicating the information concerned.

10.

Repeals.

10.— Without prejudice to section 11 , the following provisions are repealed:

( a) Part VII (International Co-operation) of the Act of 1994 and the Second Schedule (taking of evidence for use outside State) thereto;

( b) section 15 (amendment of Act of 1994) of the Criminal Justice (Miscellaneous Provisions) Act 1997; and

( c) section 22 (amendment of section 56A of Act of 1994) of the Criminal Justice (Theft and Fraud Offences) Act 2001.

11.

Saving.

11.— (1) Where—

( a) mutual assistance between the State and another state was provided for by or under a provision of Part VII of the Act of 1994 before the repeal of that Part on the commencement of section 10(a) , and

( b) the state is not designated under section 4 for the purposes of that assistance,

the assistance concerned shall continue to be provided under and in accordance with the corresponding provision of this Act, which accordingly shall have effect, with any necessary modifications, for that purpose.

(2) The reference in subsection (1) to Part VII of the Act of 1994 includes a reference to the Second Schedule to that Act.

(3) References in subsection (1) to a state include references to a country or territory within the meaning of the said Part VII.

PART 2

Information about Financial Transactions for Criminal Investigation Purposes

12.

Interpretation( Part 2).

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

“account” means an account, of whatever nature, in a financial institution, whether in the State or a designated state, which is held or controlled by a person and includes—

( a) an account held by the person under a different name or different version of the person’s name,

( b) an account held by the person jointly with another person,

( c) an account held by another person on which the person is authorised to operate, whether by way of a power of attorney or otherwise,

( d) an account held by another person (in this Part referred to as a “sending or recipient account”) to or from which payments have been or are being made from or to an account in the name of a person specified in an account information order, and

( e) any other account held by another person, where information in relation to it would be relevant to the investigation referred to in the request;

“account information order” means an order under section 13 or 17 that a specified financial institution shall, within a time to be specified by the applicant for the order by notice in writing or any extension of that time under subsection (2)

( a) state—

(i) whether an account or accounts in the name or names of a specified person or persons or in a specified different version or versions of that name or those names is or are held in the financial institution, and

(ii) whether it has become aware, in the ordinary course of business, of any other account or accounts in the institution on which the specified person or persons is or are authorised to operate, whether by way of a power of attorney or otherwise,

and

( b) if so, provide to the applicant or his or her nominee, in a manner and form specified in the notice, any information that it has in relation to any such account or accounts and any sending or recipient accounts, including details of any operations thereon specified in the notice during any period so specified;

“account monitoring order” means an order under section 13 or 17 that a specified financial institution shall enable the applicant for the order to monitor, during a period, and in a manner and form, specified by the applicant by notice in writing, any operations so specified that are being carried out on an account or accounts in a specified name or names or in a specified different version or versions of that name or those names in the financial institution;

“financial institution” means—

( a) if the financial institution is in the State—

(i) a person who holds or has held a licence from the F12 [ Central Bank of Ireland ] under section 9 of the Central Bank Act 1971,

(ii) a person referred to in section 7(4) of that Act, or

(iii) a credit institution (within the meaning of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 ( S.I. No. 395 of 1992)) which has been authorised by that Authority to carry on the business of a credit institution in accordance with the supervisory enactments within the meaning of those Regulations,

or

( b) if the financial institution is in a designated state, a bank or a non-bank financial institution;

“form”, where it occurs in the definition of account information order and account monitoring order, means a form which—

( a) is permanent and legible, whether or not it has been converted into such a form from an electronic or other non-legible form, or

( b) if so specified by the applicant for such an order, is an electronic or other non-legible form which is capable of being converted into a permanent and legible form;

“political offence”—

( a) includes an offence connected with a political offence,

( b) does not include—

(i) an offence to which section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act 1987 (the “ Act of 1987 ”) applies, or

(ii) an offence, as defined in subsection (3), of conspiracy or association to commit such an offence;

“2001 Protocol” means the Protocol of 16 October 2001 to the 2000 Convention;

“sending or recipient account” has the meaning given to it by paragraph (d) of the definition of “account”.

(2) The time specified by an applicant for an account information order—

( a) is a time within which a financial institution may reasonably be expected to provide the information specified in the order, and

( b) may be extended for a period specified by the applicant in a further notice in writing, after consultation with the financial institution concerned.

(3) The offence of conspiracy or association referred to in paragraph (b)(ii) of the definition of “political offence” is an offence—

( a) which is constituted by the behaviour described in Article 3(4) of the Convention relating to Extradition between the Member States of the European Union, done at Brussels on 27 September 1996, namely, behaviour by a person which contributes to the commission, by a group of persons acting with a common purpose, of—

(i) one or more than one offence in the field of terrorism as mentioned in Articles 1 and 2 of the 1977 Terrorism Convention, drug trafficking or other forms of organised crime, or

(ii) other acts of violence against the life, physical integrity or liberty of a person or creating a collective danger for persons,

and

( b) which is punishable, even if the person does not take part in the actual commission of the offence or offences, by a term of imprisonment for a period of 12 months or a more severe penalty,

where the contribution was intentional and made with knowledge of the purpose and general criminal activity of the group or of its intention to commit the offence or offences concerned.

(4) The reference in this section to section 3 of the Act of 1987 is to that section as amended by section 2 of the Extradition (Amendment) Act 1994 and sections 12 and 27 of the Extradition (European Union Conventions) Act 2001.

Annotations:

Amendments:

F12

Substituted (1.10.2010) by Central Bank Reform Act 2010 (23/2010), s. 15(14) and sch. 2 part 14 item 29, S.I. No. 469 of 2010.

Information about financial transactions for use in the State

13

Account information order and account monitoring order.

13.— (1) For the purposes of a criminal investigation in the State, a member of the Garda Síochána not below the rank of inspector may apply ex parte and otherwise than in public to a judge of the High Court for an account information order or an account monitoring order or for both of those orders.

(2) The application may relate to—

( a) all financial institutions in the State or the designated state concerned,

( b) a category or categories of such financial institutions, or

( c) a particular such financial institution or particular such financial institutions.

(3) The judge may make the order or orders applied for in relation to the financial institution or financial institutions specified in the application if satisfied that—

( a) the Garda Síochána are investigating whether a specified person—

(i) has committed an offence, or

(ii) is in possession or control of assets or proceeds deriving from criminal conduct,

and

( b) there are reasonable grounds for believing—

(i) that the financial institution or financial institutions concerned may have information which is required for the purposes of the investigation, and

(ii) that it is in the public interest that any such information should be disclosed for those purposes, having regard to the benefit likely to accrue to the investigation and any other relevant circumstances.

(4) An order under this section shall contain sufficient information in relation to any account specified in it to enable the account to be identified by the financial institution concerned.

(5) An order under this section has effect notwithstanding any obligation as to secrecy or any other restriction on disclosure imposed by statute or otherwise.

(6) A notice in writing given to a financial institution pursuant to an order under this section and specifying operations on accounts kept therein may be modified by the applicant for the order, in consultation with the financial institution, with a view to avoiding as far as practicable the provision by that institution of information that is not relevant to the criminal investigation concerned.

(7) Any information provided by a financial institution in the State in compliance with an order under this section is not admissible in evidence against the financial institution, except in any proceedings for an offence under section 21 (1)(b) .

14.

Request to designated state for information about financial transactions.

14.— (1) Where an account information order or account monitoring order relates to information concerning an account or accounts in a financial institution in a designated state, the Director of Public Prosecutions may send the order to the Central Authority for transmission to a competent authority in that state, together with a request by the Director for the supply of the information to which the order relates.

(2) Notwithstanding subsection (1), the Director may make a request directly to a competent authority in a designated state for the supply of any information to which an account information order or account monitoring order could relate if a criminal investigation is taking place in the State and the Director has reasonable grounds for believing—

( a) that a financial institution or financial institutions in the designated state may have information which is required for the purposes of the investigation, and

( b) that it is in the public interest that any such information should be disclosed for those purposes, having regard to the benefit likely to accrue to the investigation and any other relevant circumstances.

(3) Any request under this section shall include—

( a) a statement by the Director that an investigation is taking place into a specified offence and that the person mentioned in the request is the subject of the investigation, and

( b) the following information:

(i) why the Director considers that the requested information is likely to be of substantial value for the purposes of the investigation;

(ii) why he or she considers that a financial institution or financial institutions in the designated state may keep the account or accounts concerned;

(iii) if available, the name or names of that institution or those institutions;

(iv) the maximum period of imprisonment to which a person of full capacity and not previously convicted is liable on conviction for the offence;

(v) the content of subsections (4) and (5); and

(vi) any other information that may facilitate compliance with the request.

(4) Information obtained in response to a request under this section shall not, without the consent of the competent authority, be used for any purpose other than that permitted by the relevant international instrument.

(5) When any such information is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to the competent authority unless the authority indicates that it need not be returned.

Information about financial transactions for use in designated state

15.

Request from designated state for information about financial transactions.

15.— (1) This section applies to a request for information in relation to any account or accounts that may be held in a financial institution in the State by a person who is the subject of a criminal investigation in a designated state.

(2) The request shall include—

( a) a statement that a specified offence has been committed in the designated state concerned and that the person mentioned in the request is the subject of an investigation into the offence,

( b) a statement that—

(i) any information that may be supplied in response to the request will not, without the Minister’s prior consent, be used for any purpose other than that specified in the request, and

(ii) the record of any such information will be returned when no longer required for the purpose so specified (or any other purpose for which such consent has been obtained), unless the Minister indicates that its return is not required,

and

( c) the following information:

(i) why the requesting authority considers that the requested information is likely to be of substantial value for the purposes of the investigation;

(ii) why it considers that a financial institution or financial institutions in the State may hold the account or accounts concerned;

(iii) if available, the name or names of that institution or those institutions;

(iv) the maximum period of imprisonment under the law of the designated state by which the offence is punishable; and

(v) any other information that may facilitate compliance with the request.

(3) In subsection (1), “information” includes—

( a) information as to whether a financial institution in the State keeps an account or accounts mentioned in that subsection,

( b) details of any such account or accounts,

( c) details of operations on any such account or accounts during a particular period.

16.

Action on request.

16.— The Minister may, if of opinion that the request complies with section 15 , authorise a member of the Garda Síochána not below the rank of inspector to apply to a judge of the High Court for an account information order or account monitoring order, or for both of those orders, in relation to the information requested.

17.

Account information order and account monitoring order on foot of request.

17.— (1) On receipt of an authorisation under section 16 a member of the Garda Síochána not below the rank of inspector may apply ex parte and otherwise than in public to a judge of the High Court for an account information order or account monitoring order or for both of those orders.

(2) The application—

( a) may relate to—

(i) all financial institutions in the State,

(ii) a category or categories of such financial institutions, or

(iii) a particular such financial institution or particular such financial institutions,

and

( b) shall be accompanied by a copy of the request concerned and of any supporting or related documents.

(3) The judge may make the order or orders applied for in relation to the financial institution or financial institutions specified in the application if satisfied that—

( a) there are reasonable grounds for believing that an offence under the law of the designated state concerned has been committed,

( b) the person mentioned in the request is the subject of an investigation into the offence,

( c) the request is otherwise in accordance with the relevant international instrument, and

( d) there are reasonable grounds for believing that the specified financial institution or financial institutions may have information which is required for the purposes of the investigation.

(4) An order under this section shall contain sufficient information in relation to any account specified in it to enable the account to be identified by the financial institution concerned.

(5) An order under this section has effect notwithstanding any obligation as to secrecy or any other restriction on disclosure imposed by statute or otherwise.

(6) Any information provided by a financial institution in compliance with such an order is not admissible in evidence against it, except in any proceedings for an offence under section 21(1)(b) .

18.

Transmission of information obtained to requesting authority.

18.— Information disclosed by a financial institution in compliance with an account information order or account monitoring order under section 17 shall be transmitted to the requesting authority concerned in accordance with arrangements approved by the Minister.

19.

Requesting authority to be informed of possible further investigations.

19.— During the execution of a request under this Part the Commissioner of the Garda Síochána, if of opinion that it may be appropriate to undertake investigations which were not initially foreseen or could not be specified when the request was made, shall inform the requesting authority accordingly.

Supplementary

20.

Variation or discharge of account information order or account monitoring order.

20.— (1) A judge of the High Court may vary or discharge an account information order or account monitoring order on application by—

( a) a member of the Garda Síochána not below the rank of inspector, or

( b) any financial institution affected by the order.

(2) Where the application relates to an order under section 17 , the judge shall arrange for the competent authority in the designated state concerned to be notified—

( a) of the application and the grounds for making it, so as to enable the authority to submit any arguments that it deems necessary at the hearing of the application, and

( b) of the outcome of the application.

(3) The application shall be heard otherwise than in public.

21.

Offences under this Part.

21.— (1) A financial institution in the State is guilty of an offence—

( a) if, without reasonable excuse, it does not comply with an account information order or account monitoring order, or

( b) if, while purporting to comply with such an order, it—

(i) makes a statement which it knows to be false or misleading in a material particular, or

(ii) recklessly makes a statement which is false or misleading in such a particular.

(2) Subsection (1) is without prejudice to the law relating to contempt of court.

(3) A financial institution in the State and any person who is a director, or an officer or other employee, of the institution is guilty of an offence if the institution or person, knowing or suspecting that an application has been made under this Part for an account information order or an account monitoring order or both, makes any disclosure which prejudices, or is likely to prejudice, the criminal investigation giving rise to the application.

(4) In proceedings for an offence under subsection (3) it is a defence for the financial institution or person to prove that the institution or person—

( a) did not know or suspect that the disclosure to which the proceedings relate prejudiced, or was likely to prejudice, the criminal investigation concerned, or

( b) had lawful authority or reasonable excuse for making the disclosure.

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

( a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, and

( b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

(6) A financial institution which is guilty of an offence under this section is liable—

( a) on summary conviction, to a fine not exceeding €5,000, and

( b) on conviction on indictment, to a fine.

PART 3

Interception of Telecommunications Messages

Introductory

22.

Interpretation ( Part 3).

22.— In this Part, unless the context otherwise requires—

“Act of 1983” means the Postal and Telecommunications Services Act 1983;

“Act of 1993” means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;

“competent authority” means the person or body in a member state who or which in the opinion of the Minister is the competent authority for the purposes of Title III of the 2000 Convention;

“interception” means the interception of telecommunication messages to or from a person specified in the authorisation of the interception at a telecommunications address so specified;

“telecommunications address” has the meaning that it has in the Act of 1993.

Requests for interception where technical assistance required

23.

Request to member state for interception.

23.— (1) This section applies where—

( a) for the purpose of a criminal investigation the Minister has given an authorisation of an interception under section 2 of the Act of 1993,

( b) the person specified in the authorisation is present in the State or a member state, and

( c) technical assistance from a member state is needed to intercept the telecommunications messages concerned.

(2) Where this section applies, the Minister may cause a request to be made to a competent authority in the member state for—

( a) the interception by that authority and immediate transmission to the Commissioner of the Garda Síochána or a member of the Garda Síochána nominated by him or her of telecommunications messages to or from the telecommunications address concerned, or

( b) the interception and recording of the messages and the transmission of the recording to the Commissioner or member.

(3) The request shall—

( a) confirm that an authorisation of an interception has been given by the Minister under the Act of 1993 for the purpose of a criminal investigation,

( b) give sufficient information to identify the person whose telecommunications messages are to be intercepted,

( c) give an indication of the criminal conduct under investigation,

( d) state the desired duration of the interception,

( e) provide sufficient technical data, including the network connection number of the telecommunications address concerned, to ensure that the request can be met, and

( f) where the request—

(i) relates to a specified person who is present in the member state concerned, or

(ii) is a request under subsection (2)(b),

provide a summary of the facts relating to the offence being investigated and any further information that the competent authority may require to enable it to decide whether the requested interception would be authorised by it in similar circumstances.

(4) If the request relates to a person who is present in a member state other than that from which the technical assistance is required, that other member state shall be notified of the authorisation in accordance with section 26 .

(5) Information received in response to the request is deemed to be official information for the purposes of the Official Secrets Act 1963.

(6) For the removal of doubt, it is declared that an authorisation may be given under section 2 of the Act of 1993 where the person whose telecommunications messages are to be intercepted is present in a member state.

24.

Request to State for interception.

24.— (1) This section applies where—

( a) a criminal investigation is taking place in a member state,

( b) a lawful interception order or warrant for the interception of telecommunications messages to or from a specified person or telecommunications address has been issued in the member state in connection with the investigation,

( c) a competent authority in the member state makes a request to the Minister for—

(i) the interception and immediate transmission to the authority or a person nominated by it of telecommunications messages to or from the telecommunications address concerned, or

(ii) the interception and recording of the messages and the transmission of the recording to the authority or the person nominated by it, and

( d) the specified person—

(i) is present in the member state or another member state and the competent authority in the former member state needs the technical assistance of the State to intercept the telecommunications messages, or

(ii) is present in the State and the interception can be made therein.

(2) The request shall—

( a) indicate the name of the competent authority,

( b) confirm that a lawful interception order or warrant has been issued in connection with a criminal investigation,

( c) give sufficient information to identify the person whose telecommunication messages are to be intercepted,

( d) give an indication of the criminal conduct under investigation,

( e) state the desired duration of the interception,

( f) provide sufficient technical data, including the network connection number of the telecommunications address concerned, to ensure that the request can be met, and

( g) if the person is present in a member state other than that in which the lawful interception order or warrant has been issued and from which no technical assistance is required to carry out the interception, confirm that that member state has been informed of the order or warrant pursuant to Article 20(2)(a) of the 2000 Convention.

(3) Where—

( a) the person whose telecommunications messages are to be intercepted is present in the State, or

( b) the request is for the interception and recording of the messages and transmission of the recording,

the request shall also include a summary of the facts relating to the offence being investigated and any further information that the Minister may require to enable him or her to decide whether the conduct constituting the offence, if it occurred in the State, would constitute a serious offence within the meaning of the Act of 1993 and otherwise justify the giving of an authorisation under that Act.

25.

Action on request.

25.— (1) Subject to subsection (3), where the request is for the interception and immediate transmission of specified telecommunications messages, the Minister may give an authorisation of the interception if of opinion that section 24 applies and is complied with in relation to the case.

(2) Subject to subsection (3), where—

( a) the request is for the interception and recording of specified telecommunication messages and transmission of the recording, and

( b) immediate transmission of the interception is not possible—

(i) from the State,

(ii) to the member state, or

(iii) in both of those cases,

the Minister may give an authorisation of the interception if of opinion that section 24 applies and is complied with in relation to the case.

(3) Where in a case referred to in subsection (1) or (2), the person who is the subject of the request is present in the State, the Minister may give an authorisation of the interception only if of opinion that—

( a) the conduct being investigated in the requesting state would, if it occurred in the State, constitute a serious offence within the meaning of the Act of 1993 and otherwise justify the giving of an authorisation under that Act, and

( b) section 24 applies and is complied with in relation to the case.

(4) If a declaration is made by the State under the 2000 Convention that it is bound by paragraph 6 (as given effect to by subsections (2) and (3)) of Article 18 of the Convention only where immediate transmission from the State of the interception concerned is not possible, paragraphs (b)(ii) and (b)(iii) of subsection (2) thereupon cease to have effect.

(5) Where the person who is the subject of the request is present in the State, the Minister may make the authorisation subject to any condition (including a condition related to the use of the intercepted messages) that would apply if the authorisation were one given under section 2 of the Act of 1993 in relation to a person present in the State.

(6) Where an authorisation is given, the Commissioner of the Garda Síochána shall—

( a) arrange for the transmission of the telecommunications messages concerned to the competent authority in the member state or a person nominated by it, or

( b) as appropriate, arrange for the recording of the messages and transmission of the recording to that authority or person.

(7) In considering any request under Article 18.8 of the 2000 Convention for a transcript of such a recording, the Minister shall have regard to all the circumstances of the particular case; and the granting of such a request may be subject to any condition to which authorisation of the interception may be subject.

(8) The authorisation is deemed to be an authorisation under section 2 of the Act of 1993, and that Act and section 110 of the Act of 1983 (in so far as it relates to directions related to such authorisations) have effect accordingly, with any necessary modifications, for all purposes as if the authorisation and any such directions had been given under the Act of 1993 and the Act of 1983.

Notifications of other interceptions

26.

Notification to member state of interception.

26.— (1) Where—

( a) for the purpose of a criminal investigation the Minister has given an authorisation of an interception under section 2 of the Act of 1993,

( b) the telecommunications address of the person specified in the authorisation is being used on the territory of a member state, and

( c) technical assistance from the member state is not required to carry out the interception,

the Minister shall inform the competent authority in the member state of the authorisation—

(i) before the interception, if the Minister is then aware that the person is present on that territory, or

(ii) in any other case, immediately after the Minister becomes so aware.

(2) The notification shall include the following information:

( a) confirmation that authorisation of an interception has been given by warrant under section 2 of the Act of 1993 in connection with a criminal investigation;

( b) details sufficient to identify the subject of the interception;

( c) an indication of the criminal conduct under investigation; and

( d) the expected duration of the interception.

(3) The Minister shall comply with any condition, requirement or request imposed or made by the competent authority in relation to the interception pursuant to Article 20.4 of the 2000 Convention.

(4) Pending a decision by the competent authority on whether to consent to the interception or to its continuance—

( a) any interception made may be continued, but

( b) material intercepted may not be used unless—

(i) otherwise agreed between the Minister and the competent authority, or

(ii) in connection with taking urgent measures to prevent an immediate and serious threat to public security (including measures in respect of any serious offence), in which case the Minister shall inform the competent authority of any such use and the reasons justifying it.

(5) In subsection (4)(b)(ii), “serious offence” means an offence specified in the Schedule to the Bail Act 1997 for which a person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of 5 years or by a more severe penalty.

(6) If so requested by the competent authority, the Minister shall supply it with a summary of the facts of the case and any further information necessary to enable it to decide whether an interception would be authorised by it in similar circumstances.

(7) Subsection (6) is without prejudice to subsection (4), unless otherwise agreed between the Minister and the competent authority.

(8) Where the Minister is of opinion that the information to be provided under subsection (2) is of a particularly sensitive nature, the information may, with the agreement of the competent authority concerned, be transmitted to it through a specific person or body.

(9) This section does not apply in relation to a member state which has declared in accordance with the 2000 Convention that it is not necessary to provide it with information on interceptions as envisaged in Article 20 of that Convention.

27.

Notification by member state of interception.

27.— (1) This section applies where—

( a) the competent authority in a member state has authorised an interception,

( b) the telecommunications address of the person specified in the authorisation is being used on the territory of the State,

( c) technical assistance from the State is not required to carry out the interception, and

( d) the competent authority notifies the Minister accordingly in accordance with Article 20 of the 2000 Convention.

(2) Where this section applies, the Minister, without delay and at the latest within a period specified in subsection (7), shall proceed in accordance with subsection (3) or subsections (4) and (5), as appropriate.

(3) If an authorisation would be given under section 2 of the Act of 1993 in similar circumstances, the Minister shall authorise the interception to be carried out or continued.

(4) If—

( a) an authorisation under the said section 2 would not be given,

( b) section 3 applies, or

( c) the offence concerned is a political offence or revenue offence,

the Minister shall require that the interception not be carried out or be terminated and give the reasons for so requiring in writing.

(5) Where subsection (4) applies, the Minister shall require that any material already intercepted while the telecommunications address was being used in the State may not be used or may be used only under specified conditions, the justification for which shall be communicated by the Minister to the competent authority in writing.

(6) The Minister may request the competent authority to supply a summary of the facts of the case and any further information necessary to enable him or her to decide whether an authorisation would be given under section 2 of the Act of 1993 in similar circumstances.

(7) The following period is specified for the purposes of subsection (2):

( a) a period not exceeding 96 hours; or

( b) where it is necessary to determine whether an authorisation under section 2 of the Act of 1993 would be given in similar circumstances, a period not exceeding in total 12 days.

(8) Where paragraph (b) of subsection (7) applies, the Minister shall communicate in writing to the competent authority the conditions which justify the request for an extension of the period mentioned in paragraph (a) of that subsection.

(9) Information provided under this section by the competent authority is deemed to be official information for the purposes of the Official Secrets Act 1963.

Miscellaneous

28.

Indirect interception of telecommunications messages.

28.— (1) In this section, “authorised undertaking” has the meaning given to it by the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2003 ( S.I. No. 306 of 2003), as amended by the European Communities (Electronic Communications Networks and Services) (Authorisation) (Amendment) Regulations 2007 ( S.I. No. 372 of 2007).

(2) Where—

( a) a person is present in the State,

( b) an authorisation has been given under section 2 of the Act of 1993 for the interception of telecommunications messages to or from the person,

( c) the messages cannot be directly intercepted in the State, but

( d) an authorised undertaking which has received directions under section 110 of the Act of 1983 in relation to interceptions can facilitate interception of the messages by accessing interception equipment in a member state,

the authorised undertaking shall facilitate the interception of the messages by accessing that equipment.

(3) Where—

( a) a person is present in a member state,

( b) a lawful order or warrant for the interception of telecommunications messages to or from the person has been made or issued in the member state for the purposes of a criminal investigation and is in force,

( c) the messages cannot be directly intercepted in the member state, but

( d) an authorised undertaking which has received directions under section 110 of the Act of 1983 in relation to interceptions—

(i) can directly intercept the messages, and

(ii) has interception equipment enabling a provider of telecommunications services in the member state to intercept them,

the authorised undertaking shall facilitate the interception of the messages by the provider.

29.

Application of Act of 1993 in relation to this Part.

29.— The Act of 1993 applies and has effect in relation to this Part with the necessary modifications, including the following:

( a) references in the Act of 1993 to “this Act” are to be construed as references to this Part;

( b) references therein to an authorisation are to be construed as references to—

(i) an authorisation deemed under section 25(8) to be an authorisation under section 2 of the Act of 1993, or

(ii) an authorisation under section 27(3) ,

as the case may be;

( c) references therein to a contravention of a provision of the Act of 1993 are to be construed as references to a contravention of a provision of this Part;

( d) references therein to official documents are to be construed as references to official documents available to the Minister in connection with a request under this Part; and

( e) references to a person in sections 8(5) and 9(11) of the Act of 1993 are to be construed as references to a person who is present in the State.

30.

Amendment of section 110 of Act of 1983.

30.— Section 110 (general ministerial powers in relation to postal and telecommunications services) of the Act of 1983 is amended by the addition of the following subsections:

“(6) A person who, without reasonable excuse, does not comply with a direction under this section is guilty of an offence and liable—

( a) on summary conviction, to a fine not exceeding €5,000, or

( b) on conviction on indictment, to a fine.

(7) Proceedings for an offence under subsection (6), including any appeal or subsequent proceedings, shall be held in camera.”.

PART 4

Freezing, Confiscation and Forfeiture of Property

Chapter 1

Interpretation

31.

Interpretation( Part 4).

31.— (1) In this Part:

“appeal” includes any proceedings for the discharge or setting aside of a judgment and any application for a new trial or stay of execution;

F13 [ certificate means

(a) the certificate provided for in Article 9 of the 2003 Framework Decision, the standard form of which is set out in the Annex to that Framework Decision, or

(b) the certificate provided for in Article 4 of the 2006 Framework Decision, the standard form of which is set out in the Annex to that Framework Decision,

as the context requires; ]

F14 [ competent authority

(a) in relation to a member state, means the authority or authorities determined by that state in accordance with Article 3 of the 2006 Framework Decision to be the competent authority of that member state, and

(b) in relation to a designated state other than one referred to in paragraph (a) , means the authority or authorities determined by that state in accordance with the relevant international instrument to be the competent authority of that designated state; ]

“confiscation co-operation order” has the meaning given to it by section 51 ;

“confiscation order” means a confiscation order within the meaning of the Act of 1994;

“defendant” means the person to whose property an external freezing order or external confiscation order relates;

“external confiscation order” means an order made by a court in a designated state for the purpose of—

( a) recovering property in the State which was received or obtained as a result of or in connection with conduct which would, if it occurred in the State, constitute an indictable offence,

( b) recovering the value of such property, or

( c) depriving a person of a pecuniary advantage so received or obtained;

“external forfeiture order” means an order for the forfeiture of property in the State which is made by a court in a designated state in or in connection with proceedings resulting from conduct which would, if it occurred in the State, constitute an indictable offence;

“external freezing order” means any measure—

( a) taken provisionally by a competent judicial authority of a designated state in criminal proceedings to prevent the destruction, transformation, moving, transfer, disposal or use of specified property in the State that could be subject to confiscation or be evidence in those proceedings, and

( b) made for the purpose of—

(i) subsequent confiscation of the property, or

(ii) protection of evidence;

“forfeiture co-operation order” has the meaning given to it by section 60 ;

“freezing co-operation order” has the meaning given to it by section 35 ;

“freezing order” means—

( a) an order under section 24 (as amended by section 105(a) of this Act) of the Act of 1994,

( b) an order under section 14 or 15 of the Criminal Justice (Terrorist Offences) Act 2005, or

( c) an order under section 32 ,

which relates to property in a designated state or in so far as it does so;

“issuing judicial authority” means a judicial authority in a designated state, as defined in the law of that state, which makes, validates or in any way confirms an external freezing order;

“issuing state” means the designated state in which an issuing judicial authority exercises jurisdiction;

“property” includes property of any description, corporeal or incorporeal, movable or immovable and wherever situated, which the competent judicial authority in the designated state considers—

( a) to be the proceeds of an offence,

( b) to be equivalent to either the full value or a part of the value of such proceeds, or

( c) to be the instrumentalities or objects of an offence,

and includes documents evidencing title to or an interest in the property;

“realisable property” means—

F15 [ (a) in relation to a freezing co-operation order, a confiscation co-operation order or an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state made in respect of specified property, the property 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,

but does not include property which is the subject of an order made by a court in other proceedings in the State unless or until that order is discharged.

(2) For the purposes of this Part, dealing with property held by any person includes (without prejudice to the generality of the expression)—

( a) where a debt is owed to that person, making a payment to any person in settlement or reduction of the debt, and

( b) removing the property from the State.

(3) References in this Part to a gift are to a gift which, if the external confiscation order were a confiscation order, would be a gift caught by the Act of 1994, and the provisions of that Act concerning a gift so caught apply and have effect in relation to a gift referred to in this Part.

Annotations:

Amendments:

F13

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 3(a), S.I. No. 11 of 2016.

F14

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 3(b), S.I. No. 11 of 2016.

F15

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 3(c), S.I. No. 11 of 2016.

Chapter 2

Freezing of Property

32.

Freezing order relating to evidence.

32.— (1) This section applies where criminal proceedings have been instituted, or a criminal investigation is taking place, in the State.

(2) Where this section applies, the Director of Public Prosecutions or a member of the Garda Síochána not below the rank of inspector may apply ex parte and otherwise than in public to a judge of the High Court for an order (a “freezing order”) prohibiting the destruction, transformation, moving, transfer, disposal or use by any person of specified property, whether in or outside the State, that could be evidence in those proceedings or, as the case may be, in any such proceedings that may be instituted.

(3) The judge may make the order applied for if satisfied—

( a) that criminal proceedings have been instituted or a criminal investigation is taking place,

( b) that evidence relating to the offence concerned—

(i) is on specified premises,

(ii) is likely to be of substantial value (whether by itself or together with other evidence) to the proceedings or investigation, and

(iii) is likely to be admissible at a trial for the offence,

and

( c) in case the evidence is in a designated state, that a request has been or will be made for it to be transferred to the Commissioner of the Garda Síochána.

(4) An order under this section does not apply in relation to any documents subject to legal privilege.

(5) The High Court may vary or discharge an order under this section on application by—

( a) a member of the Garda Síochána not below the rank of inspector, or

( b) any person affected by it,

and shall discharge it if its continuance in force would not be in the interests of justice.

(6) If—

( a) an order under this section is transmitted for enforcement in a designated state pursuant to F16 [ section 33 ] , and

( b) the order is later varied or discharged in relation to property in the designated state,

the Court shall cause the Central Authority to be informed as soon as practicable of the variation or discharge, and that Authority shall thereupon notify the appropriate authority in the designated state accordingly.

Annotations:

Amendments:

F16

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 4, S.I. No. 11 of 2016.

33.

Transmission of freezing order for enforcement outside the State.

33.— (1) If—

( a) any property to which an application for a freezing order relates is in a member state, and

( b) the application is granted,

the applicant may request the judge concerned to cause a certificate to be completed.

(2) The certificate shall—

( a) bear a signature (which may be an electronic signature) by or on behalf of the court concerned, and

( b) include a statement as to the accuracy of the information in the certificate.

(3) If the freezing order is an order under section 32 for the protection of evidence, the court concerned may indicate to the judicial authority of the member state any formalities and procedures in enforcing the order that are necessary to ensure that the evidence is admissible in criminal proceedings.

(4) The freezing order and certificate shall be sent by a registrar of the Court to the applicant, who shall send them to the Central Authority for transmission to the appropriate authority in the member state concerned with a view to having the freezing order enforced.

(5) If a freezing order relates to property in a designated state (other than a member state), the Director of Public Prosecutions may send to the Central Authority, for transmission to the appropriate authority in the designated state with a view to having the freezing order enforced—

( a) a duly authenticated copy of the order, and

( b) such other information as may be required by the appropriate authority in accordance with the relevant international instrument.

34.

Transmission of external freezing orders to State for enforcement.

34.— (1) An external freezing order from a member state and a certificate duly completed and certified as accurate by the issuing judicial authority together with a request or instruction relating to the subsequent treatment of the evidence or property concerned shall, unless otherwise provided by a declaration by the State under Article 4.2 of the F17 [ 2003 Framework Decision ], be transmitted to the Central Authority in connection with a request for enforcement of the order.

(2) A request from any other designated state for the enforcement of an external freezing order shall be accompanied by—

( a) a duly certified copy of the order,

( b) a statement of the grounds—

(i) for making the order, and

(ii) for believing that the evidence or property concerned will be subject to an order of confiscation,

and any other information required by the relevant international instrument.

(3) Transmission of the documents mentioned in subsection (1) or (2) shall be by any means capable of producing a written record under conditions which allow the Central Authority or the High Court to establish the documents’ authenticity.

(4) An issuing judicial authority is deemed to have complied with subsection (3) if facsimile copies of the external freezing order, the certificate (where appropriate) and any translation thereof are transmitted in compliance with any regulations that may be made under subsection (6).

(5) If the Central Authority or the High Court is not satisfied that a facsimile copy of a document transmitted in accordance with this section corresponds to the document of which it purports to be such a copy, the Central Authority or the Court shall—

( a) request the issuing judicial authority to cause the original or a copy of the document to be transmitted to the Central Authority, and

( b) agree with that judicial authority on the manner in which the original or copy is to be so transmitted.

(6) The Minister may, if he or she considers it necessary for the purposes of ensuring the accuracy of documents transmitted in accordance with this section, make regulations—

( a) prescribing procedures to be followed in connection with the transmission of documents in accordance with this section, and

( b) specifying features to be present in any equipment being used in that connection.

Annotations:

Amendments:

F17

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 5, S.I. No. 11 of 2016.

35.

Recognition and enforcement of external freezing orders.

35.— (1) The Central Authority shall, on receipt of an external freezing order, certificate (where appropriate), any other supporting or related documents and any translation, forthwith cause an application to be made to the High Court for an order (in this Part referred to as a “freezing co-operation order”) recognising the external freezing order and prohibiting any person from dealing with the property specified in the external freezing order.

(2) The application may be made ex parte and otherwise than in public and shall be accompanied by the documents mentioned in subsection (1) or copies thereof and, in the case of a designated state (other than a member state), shall be made with the consent of the Minister.

(3) An application from a member state for the enforcement of an external freezing order shall be dealt with as soon as possible and, whenever practicable, within 24 hours of receipt of the order and a duly completed certificate.

(4) On an application under this section the Court may, subject to subsection (5), make a freezing co-operation order, subject to any conditions that may be specified in the order.

(5) The Court may—

( a) refuse to make a freezing co-operation order on a ground mentioned in section 3 or 46 , or

( b) postpone its making on a ground mentioned in section 47 .

(6) Where a request from a member state concerns an offence referred to in Article 3(2) of the F18 [ 2003 Framework Decision ] which is punishable in that state by a maximum term of imprisonment of not less than 3 years, the Court may not refuse to make a freezing co-operation order solely on the ground that the conduct constituting the offence concerned does not constitute an offence under the law of the State.

(7) Where—

( a) an external freezing order is for the protection of evidence,

( b) it is necessary to ensure that the evidence is admissible in the proceedings concerned, and

( c) for that purpose certain formalities and procedures in the enforcement of the external freezing order are expressly indicated by the issuing judicial authority,

the freezing co-operation order shall make provision for observing those formalities and procedures, unless their observance would be contrary to the fundamental principles of the law of the State.

(8) The Court shall cause notice of the freezing co-operation order to be given to any person who appears to be or is affected by it, unless the Court is satisfied that it is not reasonably possible to ascertain the person’s whereabouts.

Annotations:

Amendments:

F18

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 6, S.I. No. 11 of 2016.

36.

Application, etc., of freezing co-operation orders.

36.— (1) A freezing co-operation order may apply—

( a) where particular property is specified in the external freezing order, to the property so specified, and

( b) in any other case—

(i) to realisable property held by a specified person, whether the property is described in the freezing co-operation order or not, and

(ii) to any realisable property held by a specified person, being property transferred to the person after the external freezing order was made.

(2) A freezing co-operation order may make such provision as the Court thinks fit for the living expenses and legal expenses of the person possessing the property concerned.

(3) The Court—

( a) may at any time appoint a receiver—

(i) to take possession of any realisable property to which a freezing co-operation order applies, and

(ii) in accordance with the Court’s directions, to manage or otherwise deal with the property, subject to such exceptions and conditions as it may specify,

and

( b) may require any person having possession or control of the property to give up possession of it to the receiver.

(4) Where the Court has made a freezing co-operation order, a member of the Garda Síochána or an officer of customs and excise may seize any realisable property for the purpose of preventing its removal from the State.

(5) Property taken possession of under subsection (4) shall be dealt with in accordance with the Court’s directions.

37.

Registration of freezing co-operation orders.

37.— (1) Where a freezing co-operation order is made in relation to land, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Property Registration Authority a notice of the making of the order, together with a copy of the order.

(2) On receipt of those documents the Authority shall—

( a) if the land is registered land, cause an entry to be made in the register kept by it under the Registration of Deeds and Title Acts 1964 and 2006 inhibiting, until the order is discharged, any dealing with the land and any charge thereon, and

( b) if the order is subsequently varied or discharged, cause the entry to be varied accordingly or cancelled, as the case may be.

(3) If subsection (2)(a) does not apply, the Authority shall cause the notice of the making, variation or discharge of the freezing co-operation order to be registered in the register of deeds maintained by the Authority under section 35 of the Registration of Deeds and Title Act 2006.

(4) Where a freezing co-operation order is made which affects an interest in a company or its property, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Companies a notice of the making of the order, together with a copy of the order.

(5) On receipt of those documents the Registrar of Companies shall, if the company is a registered company, cause the notice to be entered in the Register of Companies and—

( a) if the company is an existing company within the meaning of the Companies Acts 1963 to 2006, send a copy of the notice to each director and the secretary of the company at the company’s registered office, or

( b) in any other case, send a copy of the notice by post to the person resident in the State who has been authorised to accept, on behalf of the company concerned, service of process and any notices required to be served on it.

(6) In this section—

“Register of Companies” means the Register of Companies maintained under the Companies Acts 1963 to 2006;

“registered company” means—

( a) a company formed and registered under those Acts,

( b) an existing company within the meaning of those Acts, or

( c) a company registered under Part XI of the Companies Act 1963 or the European Communities (Branch Disclosure) Regulations 1993 ( S.I. No. 395 of 1993).

38.

Exercise of powers under this Chapter by High Court or receiver.

38.— (1) The powers of the High Court under section 36 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to making available for recovery property which may become liable to be recovered under any confiscation co-operation order F19 [ or, in the case of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, that external confiscation order ] that may be made in the defendant’s case.

(2) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of a gift, to retain or recover the value of any property held by the person.

(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

(4) In exercising the powers no account shall be taken of any obligations of the defendant or the recipient of any gift that conflict with the obligation to satisfy F20 [ any order referred to in subsection (1) ] that may be made in the defendant’s case.

Annotations:

Amendments:

F19

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 7(a), S.I. No. 11 of 2016.

F20

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 7(b), S.I. No. 11 of 2016.

39.

Receivers: supplementary provisions.

39.— A receiver appointed under section 36 who takes any action—

( a) in relation to property which is not realisable property, being an action which he or she would be entitled to take if it were such property,

( b) believing, and having reasonable grounds for believing, that he or she is entitled to take that action in relation to that property,

is not liable to any person in respect of any loss or damage resulting from the action except in so far as the loss or damage is caused by his or her negligence.

40.

Bankruptcy of defendant, etc.

40.— (1) Where a person who holds realisable property is adjudicated bankrupt—

( a) property for the time being subject to a freezing co-operation order made before the order adjudicating the person bankrupt, and

( b) any proceeds of property realised by virtue of section 36 , for the time being in the hands of a receiver,

is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act 1988.

(2) Where a person has been adjudicated bankrupt, the powers of the High Court under section 36 or of a receiver appointed under that section shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift—

( a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a freezing co-operation order, and

( b) any decision as to whether it is void made under any of those sections after the discharge of the freezing co-operation order shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(4) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before 1 January 1989, this section has effect with the modification that for references to the property of the bankrupt for the purposes of the said Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

41.

Property subject to freezing co-operation order dealt with by Official Assignee.

41.— (1) Without prejudice to the generality of any provision of any other enactment, where—

( a) the Official Assignee or a trustee appointed under Part V of the Bankruptcy Act 1988 seizes or disposes of any property in relation to which his or her functions are not exercisable because it is for the time being subject to a freezing co-operation order, and

( b) at the time of the seizure or disposal he or she believes, and has reasonable grounds for believing, that he or she is entitled (whether under an order of the court or otherwise) to seize or dispose of the property,

he or she is not liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his or her negligence in so acting, and he or she has a lien on the property, or the proceeds of its sale, for such of his or her expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his or her remuneration as may reasonably be assigned for his or her acting in connection with those proceedings.

(2) Where the Official Assignee or a trustee appointed as aforesaid incurs expenses in respect of any property mentioned in subsection (1)(a) and, when doing so, does not know and has no reasonable grounds for believing that the property is subject to a freezing co-operation order, he or she is entitled (whether or not he or she has seized or disposed of that property so as to have a lien) to payment of those expenses under section 42 .

42.

Application of proceeds of realisation.

42.— (1) Money paid or recovered in respect of a freezing co-operation order (including any variation of such an order) may, to the extent necessary, be applied to meet expenses incurred in exercising any powers under this Act and the remuneration of any person employed for that purpose.

(2) Money paid or recovered in respect of a freezing co-operation order, after payment of any expenses or remuneration in accordance with subsection (1)

( a) shall be applied towards satisfaction of the order, and

( b) shall, subject to any provision to the contrary in the relevant international instrument, be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance unless, on request by or on behalf of the designated state concerned, the Court provides otherwise.

Annotations:

Modifications (not altering text):

C1

Functions transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2).

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of —

(a) the enactments specified in Schedule 1, and

(b) the statutory instruments specified in Schedule 2,

are transferred to the Minister for Public Expenditure and Reform.

...

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

...

Schedule 1

Enactments

...

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

...

No. 7 of 2008

...

...

Criminal Justice (Mutual Assistance) Act 2008

...

...

Sections 42 and 60(6)

...

43.

Winding up of company holding realisable property.

43.— (1) Where realisable property is held by a company and an order for its winding up has been made or a resolution has been passed by it for a voluntary winding up, the functions of the liquidator (or any provisional liquidator) are not exercisable in relation to—

( a) property for the time being subject to a freezing co-operation order made before the relevant time, and

( b) any proceeds of property realised by virtue of section 36 for the time being in the hands of a receiver.

(2) Where such an order has been made or such a resolution passed, the powers conferred on the High Court under section 36 or on a receiver appointed under that section shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable—

( a) so as to inhibit him or her from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors, or

( b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) In this section—

“company” means any company which may be wound up under the Companies Acts 1963 to 2006;

“relevant time” means—

( a) where no order for the winding up of the company has been made, the time of the passing of the resolution for its voluntary winding up,

( b) where such an order has been made and, before presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

( c) in any other case where such an order has been made, the time of the making of the order.

44.

Duration of freezing co-operation order.

44.— A freezing co-operation order remains in force—

( a) where the external freezing order is for the purpose of securing evidence, until the evidence is transferred to the issuing state or a request for such a transfer is refused,

F21 [ (b) where the order is for the purpose of subsequent confiscation of property

(i) in the case of confiscation on foot of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, until the execution of that external confiscation order or until the Central Authority has informed the competent authority in the designated state concerned of one of the matters under paragraphs (c) , (d) , (e) , (f) and (g) of section 51G , and

(ii) in any other case, until a confiscation co-operation order is made or the request for such an order is refused and the refusal is upheld on any appeal against it, or ]

( c) until the freezing co-operation order is discharged in accordance with section 45 .

Annotations:

Amendments:

F21

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 8, S.I. No. 11 of 2016.

45.

Variation or discharge of freezing co-operation order.

45.— (1) Subject to the provisions of this section, the High Court, on application by F22 [ the Central Authority or ] any person affected by a freezing co-operation order—

( a) may vary or discharge it, and

( b) shall discharge it—

(i) if proceedings in respect of the offence are not instituted, or an application for the transfer of the evidence or for a confiscation order is not made, within such time as the court considers reasonable, or

(ii) if the court considers that for any other reason the continuance in force of the order would not be in the interests of justice.

(2) Notice of an application under this section and of the grounds for it shall be given by the applicant, in such manner as may be prescribed by rules of court or as the Court may direct, to the Central Authority for transmission to the issuing authority.

(3) The making of an application under this section does not have suspensive effect.

(4) The substantive grounds for making the external freezing order may be reviewed only by a judicial authority in the issuing state concerned.

(5) The registrar of the Court shall inform the issuing judicial authority of the outcome of the application.

Annotations:

Amendments:

F22

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 9, S.I. No. 11 of 2016.

46.

Refusal to make freezing co-operation order.

46.— (1) Without prejudice to section 3 , the High Court may refuse to make a freezing co-operation order only if—

( a) the offence to which the external freezing order relates is not an offence to which the relevant international instrument relates,

( b) where the external freezing order was made in a member state, the certificate is not produced, is incomplete or manifestly does not correspond to the external freezing order,

( c) there is an immunity or privilege under the law of the State which makes it impossible to make a freezing co-operation order,

( d) it is immediately clear from the information provided in a certificate that compliance with a request for the transfer of evidence or confiscation of property in relation to the offence in respect of which the external freezing order has been made would infringe the ne bis in idem principle, or

( e) in the case of an external freezing order from a designated state (other than a member state), there is not a reasonable basis for believing—

(i) that there are sufficient grounds for making the order, or

(ii) that the property will be subject to an external confiscation order.

(2) In a case referred to in subsection (1)(b), the High Court may—

( a) specify a deadline for presentation of a certificate or for its completion or correction,

( b) accept an equivalent document, or

( c) if the Court considers that the information provided is sufficient, dispense with the requirement to produce the certificate.

(3) Where—

( a) the High Court refuses to make a freezing co-operation order, or

( b) notwithstanding consultation with the issuing judicial authority concerned, it is not possible to make such an order because—

(i) the evidence or property has disappeared, has been destroyed or cannot be found in the location indicated in the certificate, or

(ii) its location has not been indicated in a sufficiently precise manner,

the Court shall direct the Central Authority to inform the judicial authority accordingly by any means capable of producing a written record.

47.

Postponement of freezing co-operation order.

47.— (1) The High Court may postpone the making of a freezing co-operation order—

( a) where making it might prejudice an ongoing criminal investigation in the State, until such time as the Court deems reasonable,

( b) where the property or evidence concerned is already subject to a freezing order in criminal proceedings in the State, until that order is discharged, or

( c) subject to subsection (2), where, in the case of an external freezing order freezing property with a view to its subsequent confiscation, the property is already subject to an order made in other proceedings in the State, until that order is discharged.

(2) Subsection (1)(c) applies only if the order made in such other proceedings would have priority over a subsequent freezing order in criminal proceedings.

(3) Where the ground for postponement ceases to exist, the Court shall forthwith make a freezing co-operation order.

(4) The Court shall direct the Central Authority to inform the issuing judicial authority by any means capable of producing a written record of—

( a) any postponement under this section of the making of a freezing co-operation order, the reasons for the postponement and its expected duration,

( b) the making of a freezing co-operation order under subsection (3), and

( c) any other measure of restraint to which the property concerned may be subject.

48.

Subsequent treatment of frozen property.

48.— (1) A request to transfer evidence subject to a freezing co-operation order to the issuing state shall be treated as a request for assistance in obtaining evidential material under section 75 .

(2) A request to make a confiscation co-operation order in relation to property subject to such an order shall be dealt with in accordance with F23 [ this Part ].

(3) Notwithstanding subsection (1), where—

( a) a request from a member state concerns an offence to which Article 3(2) of the F23 [ 2003 Framework Decision ] applies, and

( b) the offence is punishable in the issuing state by a term of imprisonment of not less than 3 years,

the High Court may not refuse a request for evidence to be transferred to that state on the ground that the conduct constituting the offence is not an offence under the law of the State.

Annotations:

Amendments:

F23

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 10(a) and (b), S.I. No. 11 of 2016.

Chapter 3

Confiscation of Property

49.

Request for confiscation of property in designated state.

49.— (1) If a confiscation order relates to property in a designated state, the registrar or clerk of the court concerned shall, on request and subject to any conditions that may be specified by rules of court, give to the Director of Public Prosecutions—

( a) a duly authenticated copy of the order, and

( b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

(2) If such a confiscation order has not been satisfied, the Director of Public Prosecutions may send to the Central Authority, for transmission to the competent authority in the designated state concerned—

( a) the documents mentioned in subsection (1),

( b) a document signed by or on behalf of the Director stating—

(i) that the order is in force and has not been satisfied, and

(ii) that the defendant appeared or was represented at the proceedings in which the order was made or, if not, the date on which the court proceedings began and the date on which the defendant received notice of them,

( c) a brief description of the conduct which resulted in the making of the order, and

( d) a request that the property concerned be realised and the proceeds applied in accordance with the law of that state.

F24 [ (2A) Where the Director of Public Prosecutions sends a request to the Central Authority under subsection (2) the Director of Public Prosecutions shall inform the Central Authority

(a) if there is a risk that the amount that may be realised in pursuance of such a request is greater than the amount ordered to be paid under the confiscation order, stating that there is that risk and requesting that the amount to be realised not exceed the amount specified in the request,

(b) if all or part of the confiscation order has been executed in the State or in another designated state, stating the amount of the proceeds of realisation and requesting that the amount to be realised in the designated state concerned not exceed the difference between the amount specified in the confiscation order and those proceeds of realisation,

(c) if the defendant has made any voluntary payment in respect of the confiscation order after it was transmitted, stating the amount of that voluntary payment and requesting that the amount to be realised in the designated state concerned not exceed the difference between the amount specified in the confiscation order and the amount paid voluntarily, or

(d) if the confiscation order ceases to be enforceable, stating that fact. ]

(3) If—

( a) property is realised in pursuance of such a request, and

( b) the amount realised is less than, or equal to, the amount ordered to be paid under the confiscation order,

the amount so ordered is deemed to be reduced by an amount equal to the proceeds of realisation or, as the case may be, the confiscation order is deemed to be discharged.

(4) In any proceedings a certificate purporting to be issued by a competent authority in the designated state and stating—

( a) that property has been realised pursuant to the request,

( b) the date of realisation, and

( c) the proceeds of realisation,

is admissible, without further proof, as evidence of those matters.

F24 [ (4A) Transmission of documents referred to in subsections (2) and (2A) shall be by any means capable of producing a written record under conditions which allow the competent authority or competent authorities concerned to establish the documents authenticity. ]

(5) If the proceeds of realisation are stated in the certificate otherwise than in euro, they are to be taken as their euro equivalent calculated at the baseline rate of exchange prevailing on the date of realisation.

Annotations:

Amendments:

F24

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 11(a) and (b), S.I. No. 11 of 2016.

50.

Transmission to State of external confiscation order.

50.— (1) An external confiscation order may be transmitted by or on behalf of the court that made it to the Central Authority with a request for its enforcement.

(2) The external confiscation order shall be accompanied by—

( a) a duly certified copy of the order,

( b) a statement by or on behalf of the court that made the order—

(i) that it is in force and not subject to appeal, and

(ii) that, if the person against whom it was made did not appear in the proceedings concerned, notice thereof was received by the person in good time to defend the proceedings,

( c) a brief description of the conduct constituting the offence which resulted in the making of the order, and

( d) any required translations,

and shall include any further information required by the relevant international instrument.

51.

Confiscation co-operation order.

F25 [ 51. (1) The Central Authority, on receipt of an external confiscation order and accompanying documents transmitted by or on behalf of a court in a designated state other than a member state, may cause an application to be made to the High Court for an order (a confiscation co-operation order ) for the confiscation of realisable property to which the external confiscation order relates and that is in the State.

(2) The application shall be accompanied by the request, the accompanying documents and any other related documents or by copies thereof.

(3) On the application the Court may, subject to section 51B , 51C or 51D , as may be appropriate, make a confiscation co-operation order. ]

Annotations:

Amendments:

F25

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 12, S.I. No. 11 of 2016.

51A
51A.

F26 [ External confiscation orders (member states)

51A. (1) Where the Central Authority receives an external confiscation order that has been transmitted by or on behalf of a court in a designated state that is a member state, it shall, subject to subsection (2) , transmit the external confiscation order to the Director of Public Prosecutions for execution under this Act.

(2) Where the Central Authority considers that there are grounds for refusal, postponement, variation or termination of the execution of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, in accordance with the relevant international instrument, the Central Authority shall cause an application to be made to the High Court for an order under section 51B , 51C , 51E or 51F , as the case may be. ]

Annotations:

Amendments:

F26

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 13, S.I. No. 11 of 2016.

Editorial Notes:

E10

Provision made for compensation arising from default in execution of order under section by Criminal Justice Act 1994 (15/1994), s. 65(4A), as inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015) s. 34, S.I. No. 11 of 2016.

E11

The section heading is taken from the amending section in the absence of one included in the amendment.

51B

F27 [ Refusal to confiscate

51B. (1) On application made in accordance with section 51(1) or 51A(2) and without prejudice to section 3 , the High Court shall refuse to make a confiscation co-operation order in respect of an external confiscation order, or shall make an order refusing the execution of an external confiscation order made by or on behalf of a court in a designated state that is a member state, as the case may be, if

(a) subject to subsection (4) , the conduct which resulted in the making of the external confiscation order is not an offence to which the relevant international instrument relates,

(b) there is immunity or privilege under the law of the State which makes it impossible to make the confiscation co-operation order or execute the external confiscation order, as the case may be,

(c) it is immediately clear from the information provided in a certificate that compliance with the external confiscation order in relation to the offence that resulted in the making of that order would infringe the ne bis in idem principle,

(d) the defendant did not appear in person at the trial resulting in the external confiscation order, unless the certificate from the court in the designated state concerned states that

(i) he or she was notified of the time when, and place at which, the proceedings were to take place, or he or she was otherwise aware of the scheduled proceedings, and he or she was informed that an external confiscation order could be made even if he or she did not appear,

(ii) he or she was aware of the proceedings concerned and was represented at those proceedings by a lawyer whom he or she has appointed,

(iii) after having been served with the external confiscation order and expressly informed of his or her right to a retrial or an appeal in which he or she would have been able to participate and which could have led to the original decision being reversed, he or she

(I) expressly stated that he or she did not contest the external confiscation order, or

(II) did not request the retrial or appeal within the time limit for exercising that right,

or

(iv) in a case where he or she was not personally served with the external confiscation order, an undertaking has been given by the designated state concerned that he or she will be personally served with the external confiscation order without delay and will be expressly informed of his or her right to a retrial or an appeal in which he or she will be able to participate and which could lead to a reversal of the order, and of the time limit for exercising that right,

(e) the criminal conduct concerned was either committed outside the territory of the designated state concerned or committed wholly or partly in the State, or

(f) the enforcement of the confiscation co-operation order, or the execution of the external confiscation order, as the case may be, is statute barred.

(2) Where the copy of the external confiscation order is not accompanied by the documents required under section 50(2) , or is incomplete or does not correspond to the external confiscation order, the High Court

(a) may permit the certified copy of the order, or a completed or corrected certified copy of the order, to be produced by or on behalf of the court concerned in accordance with a specified deadline, or

(b) shall refuse to make a confiscation co-operation order or, as the case may be, to execute the external confiscation order, unless it is satisfied, by the production of an equivalent document or otherwise, that the information provided by or on behalf of the court concerned is sufficient.

(3) The High Court shall not make a confiscation co-operation order or, as the case may be, shall make an order refusing the execution of the external confiscation order if it is satisfied that the rights of any person holding an interest in the property the subject of the external confiscation order concerned make it impossible to execute that order.

(4) Where an external confiscation order is transmitted by or on behalf of a court in a designated state that is a member state, and the offence that resulted in the making of the order is an offence referred to in Article 6(1) of the 2006 Framework Decision punishable in that designated state by a maximum term of imprisonment of not less than 3 years, the High Court shall not make an order refusing the execution of the external confiscation order solely on the ground that the conduct constituting the offence that resulted in the making of that external confiscation order does not constitute an offence under the law of the State. ]

Annotations:

Amendments:

F27

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 14, S.I. No. 11 of 2016.

Editorial Notes:

E12

The section heading is taken from the amending section in the absence of one included in the amendment.

51C

F28 [ Postponement of confiscation

51C. (1) Where an application is made in accordance with section 51(1) or 51A(2) , the High Court may order the postponement of confiscation under this Chapter until such time as the Court considers reasonable, where to proceed with the confiscation, on foot of, as the case may be, a confiscation co-operation order or an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, might prejudice an ongoing criminal investigation in the State.

(2) The High Court may order the postponement of confiscation under this Chapter where the realisable property concerned is already subject to confiscation proceedings in the State.

(3) An order of the High Court postponing confiscation shall include an order that such measures as may be necessary to provide for the availability of the realisable property for the execution of the external confiscation order concerned be taken during the postponement period.

(4) When the grounds for the postponement cease to exist, the High Court shall, without delay

(a) where the designated state is a member state, make an order for the execution of the external confiscation order concerned, or

(b) in any other case, make a confiscation co-operation order in respect of the external confiscation order concerned.

(5) For the purposes of this section the postponement of confiscation means

(a) the postponement of the execution of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, and

(b) in any other case, the postponement of the making of a confiscation co-operation order in respect of an external confiscation order. ]

Annotations:

Amendments:

F28

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 15, S.I. No. 11 of 2016.

Editorial Notes:

E13

The section heading is taken from the amending section in the absence of one included in the amendment.

51D

F29 [ Variation or discharge of confiscation co-operation orders

51D. (1) Where a confiscation co-operation order has been made, the High Court, on application by the Central Authority or any person affected by the confiscation co-operation order

(a) may vary or discharge it,

(b) shall vary it to the extent of any amount in respect of which there has already been confiscation in any state, if the High Court is satisfied that there has been such confiscation where

(i) the person concerned has provided evidence that there has been such confiscation, in part, in that other state, and

(ii) the High Court has consulted with the competent authority in the designated state where the external confiscation order concerned was made, and that competent authority has confirmed that there has been confiscation in that other state and the extent of that confiscation,

and

(c) shall discharge it if the High Court is satisfied that there is no need for the confiscation co-operation order where

(i) the person concerned has provided evidence that there has been confiscation in any state, the High Court has consulted with the competent authority in the designated state where the external confiscation order was made and that competent authority has confirmed that that external confiscation order has been satisfied by confiscation in that other state, or

(ii) it has been informed by the competent authority in the designated state where the external confiscation order concerned was made that that order has ceased to be enforceable.

(2) Notice of an application under this section and of the grounds for it shall be given by the applicant, in such manner as may be prescribed by rules of court or as the High Court may direct, to the Central Authority for transmission to the designated state concerned.

(3) The making of an application under subsection (1) shall not suspend the execution of the confiscation co-operation order concerned. ]

Annotations:

Amendments:

F29

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 16, S.I. No. 11 of 2016.

Editorial Notes:

E14

The section heading is taken from the amending section in the absence of one included in the amendment.

51E

Variation or discharge of external confiscation orders from member states

F30 [ 51E. (1) A person who claims to be affected by an external confiscation order that has been transmitted by or on behalf of a court in a designated state that is a member state to the Central Authority and then transmitted to the Director of Public Prosecutions under section 51A for execution in the State may make an application to the High Court to vary or discharge that external confiscation order.

(2) The High Court shall consider an application made under subsection (1) and may vary or discharge the external confiscation order concerned only if it is informed by the competent authority in the designated state where the external confiscation order concerned was made that it has reviewed the substantive grounds for the order and has concluded that the external confiscation order concerned should be varied or discharged.

(3) Notice of an application under this section and of the grounds for it shall be given by the applicant, in such manner as may be prescribed by rules of court or as the High Court may direct, to the Central Authority for transmission to the designated state concerned.

(4) The making of an application under subsection (1) shall not suspend the execution of the external confiscation order concerned. ]

Annotations:

Amendments:

F30

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 17, S.I. No. 11 of 2016.

Editorial Notes:

E15

The section heading is taken from the amending section in the absence of one included in the amendment.

51F

F31 [ Termination of external confiscation orders from member states

51F. Where an external confiscation order has been transmitted by or on behalf of a court in a designated state that is a member state to the Central Authority and the Central Authority has transmitted it to the Director of Public Prosecutions under section 51A for execution in the State, the execution of that external confiscation order shall be terminated by order of the High Court only if a request to terminate it has been received from the competent authority of the designated state concerned. ]

Annotations:

Amendments:

F31

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 18, S.I. No. 11 of 2016.

Editorial Notes:

E16

The section heading is taken from the amending section in the absence of one included in the amendment.

51G

F32 [ Central Authority to inform competent authority

51G. The Central Authority shall inform, by any means capable of producing a written record, the competent authority in the designated state that transmitted an external confiscation order of the following:

(a) where the external confiscation order was transmitted by or on behalf of a court in a designated state that is a member state, when the Central Authority receives the external confiscation order;

(b) where the external confiscation order was transmitted by or on behalf of a court in a designated state that is a member state, when the execution of the external confiscation order has been completed;

(c) where it is impossible to execute the external confiscation order under section 51A because, after consultation with that competent authority, the realisable property the subject of that order has been destroyed or cannot be found in the location indicated in the documents accompanying that order or that location has not been indicated in a sufficiently precise manner;

(d) where the High Court refuses under section 51B to make a confiscation co-operation order, or makes an order refusing the execution of an external confiscation order made by or on behalf of a designated state that is a member state because, after consultation with that competent authority, the realisable property the subject of that external confiscation order has been destroyed or cannot be found in the location indicated in the documents accompanying the external confiscation order or that location has not been indicated in a sufficiently precise manner;

(e) where there has been postponement of confiscation ordered in respect of that external confiscation order under section 51C , or the grounds for such a postponement have ceased and an order has therefore been made under subsection (4) of that section;

(f) where there has been variation or discharge in respect of that external confiscation order under section 51D or 51E ; or

(g) where the execution of the external confiscation order has been terminated under section 51F . ]

Annotations:

Amendments:

F32

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 19, S.I. No. 11 of 2016.

52.

Enforcement, etc., of confiscation co-operation orders.

52.— (1) Where the High Court makes a confiscation co-operation order for the payment of a sum of money, the order may, without prejudice to section 38 enabling property of the defendant in the hands of a receiver appointed under this Act to be applied in satisfaction of the order, be enforced by the Director of Public Prosecutions at any time after it is made (or, if the order provides for payment at a later time, then at any time after the later time) as if it were a judgment of the Court for the payment to the State of the sum specified in the order or of any lesser sum remaining due under it.

(2) Nothing in subsection (1) enables a person to be imprisoned.

(3) Subject to subsections (4) and (5), if, at any time after payment of a sum due under a confiscation co-operation order has become enforceable in the manner provided for by subsection (1), it is reported to the Court by the Director of Public Prosecutions that any such sum or any part of it remains unpaid, the Court may, without prejudice to the validity of anything previously done under the order or to the power to enforce the order subsequently in accordance with subsection (1), order that the defendant be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite to the amount remaining unpaid under the confiscation co-operation order as set out in the first column thereof.

(4) An order under subsection (3) shall not be made unless—

( a) the defendant has been given a reasonable opportunity to make any representations to the Court, and

( b) the Court has taken into account those representations and any representations made by the Director of Public Prosecutions in reply.

(5) A defendant shall not be imprisoned for non-compliance with a confiscation co-operation order if the request for the enforcement of the external confiscation order so specifies and the relevant international instrument so provides.

(6) Any term of imprisonment imposed under subsection (3) of this section shall be reduced in proportion to any sum or sums paid or recovered from time to time under the confiscation co-operation order.

TABLE

Amount outstanding under confiscation order

Period of imprisonment

Not exceeding €650

Exceeding €650 but not exceeding €1,300

Exceeding €1,300 but not exceeding €3,250

Exceeding €3,250 but not exceeding €6,500

Exceeding €6,500 but not exceeding €13,000

Exceeding €13,000 but not exceeding €26,000

Exceeding €26,000 but not exceeding €65,000

Exceeding €65,000 but not exceeding €130,000

Exceeding €130,000 but not exceeding €325,000

Exceeding €325,000 but not exceeding €1,300,000

Exceeding €1,300,000

45 days

3 months

4 months

6 months

9 months

12 months

18 months

2 years

3 years

5 years

10 years

53.

Realisation of property subject to confiscation co-operation order.

53.— (1) Where—

( a) F33 [ an external confiscation order or ] a confiscation co-operation order for the payment of a sum of money has not been satisfied, or

( b) such an order is for the confiscation of property other than such a sum,

the High Court may, on application by the Director of Public Prosecutions, appoint a person to be a receiver in respect of realisable property.

(2) The Court may empower the receiver to take possession of any realisable property subject to such conditions or exceptions as may be specified by the Court.

(3) The Court may order any person having possession or control of any realisable property to give possession of it to the receiver.

(4) The Court may empower the receiver to realise any realisable property in such manner as the Court may direct.

(5) The Court may order any person holding an interest in realisable property to make such payment to the receiver as the Court may direct in respect of any beneficial interest held by the defendant or the recipient of any gift caught by this Act and the Court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

(6) The Court shall not, in respect of any property, exercise the powers conferred by this section unless a reasonable opportunity has been given to persons holding any interest in the property to make representations to it.

F34 [ (7) Where property recovered by the execution of an external confiscation order or confiscation co-operation order is not a sum of money, the receiver may

(a) cause the property recovered to be transferred to the state concerned, or

(b) cause the property recovered to be sold and, subject to subsection (8) , the proceeds transferred to the state concerned.

(8) Where property recovered by the execution of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state is a sum of money or the proceeds of a sale under subsection (7)(b)

(a) if that sum is less than 10,000, it shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct, and

(b) if that sum is 10,000 or more, 50 per cent of the sum shall be transferred to the designated state concerned and the remaining 50 per cent shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct. ]

Annotations:

Amendments:

F33

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 20(a), S.I. No. 11 of 2016.

F34

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 20(b), S.I. No. 11 of 2016.

54.

Interest on sums unpaid under confiscation co-operation orders.

54.— (1) Subject to subsection (2), if any sum required to be paid by a person under a confiscation co-operation order is not paid when it is required to be paid (whether on the making of the order or at a later time specified by the Court), the person shall be liable to pay interest on the sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from the person under the order.

(2) The amount of interest payable under subsection (1) shall be disregarded when calculating the term of imprisonment to be imposed under section 52 .

(3) The rate of interest payable under subsection (1) is that for the time being applying in relation to a High Court civil judgment debt.

55.

Payments under confiscation co-operation orders to be expressed in euro.

55.— (1) Where a sum of money payable or remaining to be paid under an external confiscation order is expressed in a currency other than the euro, the confiscation co-operation order shall require payment of an equivalent euro amount, calculated at the baseline rate of exchange prevailing between that currency and the euro on the date of the making of the confiscation co-operation order.

(2) For the purposes of subsection (1), a certificate—

( a) purporting to be signed by an officer of a financial institution (within the meaning of Part 2 ) in the State, and

( b) stating the baseline rate of exchange prevailing on a specified date between a specified currency and the euro,

is admissible, without further proof, as evidence of the exchange rate so prevailing on that date.

56.

Exercise of powers under this Chapter by High Court or receiver.

56.— (1) The powers of the High Court under section 53 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to recovering property which is liable to be recovered under the confiscation co-operation order concerned.

(2) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of a gift, to retain or recover the value of any property held by the person.

(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

(4) In exercising the powers no account shall be taken of any obligations of the defendant or the recipient of any gift that conflict with the obligation to satisfy the confiscation co-operation order.

F35 [ (5) Where realisable property is the subject of an external confiscation order and a request under section 75 , whether or not transmitted from the same designated state, the request under section 75 shall have priority over the external confiscation order. ]

Annotations:

Amendments:

F35

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 21, S.I. No. 11 of 2016.

57.

Application to confiscation co-operation orders of certain provisions relating to freezing co-operation orders.

57.— Sections 39 , 40 , 41 , 42 and 43 apply in relation to confiscation co-operation orders as they apply in relation to freezing co-operation orders, and accordingly—

( a) references to section 36 in sections 39 , 40 and 43 shall be construed as references to section 53 , and

( b) references in sections 40 , 41 , 42 and 43 to a freezing co-operation order shall be construed as references to F36 [ an external confiscation order or ] a confiscation co-operation order.

Annotations:

Amendments:

F36

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 22, S.I. No. 11 of 2016.

57A.

F37 [ Application of provisions on enforcement and realisation to execution of external confiscation order from member states

57A. Sections 52 , 54 , 55 , 56 and 57 apply in relation to external confiscation orders transmitted by or on behalf of courts in designated states that are member states (except where the execution of such orders is subject to refusal, postponement, variation or discharge, or termination under sections 51B , 51C , 51E and 51F respectively) as they apply in relation to confiscation co-operation orders. ]

Annotations:

Amendments:

F37

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 23, S.I. No. 11 of 2016.

Editorial Notes:

E17

The section heading is taken from the amending section in the absence of one included in the amendment.

Chapter 4

Forfeiture of Property

58.

Transmission of external forfeiture order to designated state for enforcement.

58.— (1) If an order of a court relates to the forfeiture of property in a designated state, the registrar or clerk of the court concerned shall, on request and subject to any conditions that may be specified by rules of court, give to the Director of Public Prosecutions—

( a) a duly authenticated copy of the order, and

( b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

(2) The Director of Public Prosecutions may send to the Central Authority, for transmission to the appropriate authority in the designated state concerned—

( a) the documents mentioned in subsection (1),

( b) a document signed by or on behalf of the Director stating—

(i) that the order is in force and has not been satisfied, and

(ii) that the defendant appeared or was represented at the proceedings in which the order was made or, if not, the date on which the court proceedings began and the date on which the defendant received notice of them,

( c) a brief description of the conduct which resulted in the making of the order,

( d) any other information required by the relevant international instrument, and

( e) a request for forfeiture of the property concerned and its disposal.

59.

Transmission of external forfeiture order to State for enforcement.

59.— (1) An external forfeiture order may be transmitted by or on behalf of the court that made it to the Central Authority with a request for its enforcement.

(2) The external forfeiture order shall be accompanied by—

( a) a duly certified copy of the order,

( b) a statement by or on behalf of the court that made the order—

(i) that it is in force and not subject to appeal, and

(ii) that, if the person against whom it was made did not appear in the proceedings concerned, notice thereof was received by the person in good time to defend the proceedings,

( c) a brief description of the conduct constituting the offence which resulted in the making of the order, and

( d) any required translations,

and shall include any further information required by the relevant international instrument.

60.

Forfeiture co-operation order.

60.— (1) The Central Authority, on receipt of an external forfeiture order and accompanying documents, may cause an application to be made to the High Court for an order (a “forfeiture co-operation order”) for the forfeiture of realisable property in the State to which the external forfeiture order relates.

(2) The application shall be accompanied by the request, the accompanying documents and any other related documents or by copies thereof.

(3) On the application the Court may, subject to subsection (4), make a forfeiture co-operation order.

(4) The Court may not make a forfeiture co-operation order unless—

( a) it is satisfied—

(i) that the application is made with the consent of the Minister,

(ii) as to the matters mentioned in section 59(2)(b),

(iii) that the conduct which resulted in the making of the external forfeiture order constitutes criminal conduct, and

(iv) that the making of the order is otherwise in accordance with the relevant international instrument,

and

( b) an opportunity has been given to any person claiming to own, or have an interest in, the property subject to the external forfeiture order to show cause why the order should not be made.

(5) A forfeiture co-operation order operates to deprive the defendant in the proceedings in which the external forfeiture order was made of any right or interest in the property and to vest the property in the Commissioner of the Garda Síochána.

(6) The forfeited property or the proceeds of any sale of the property shall be disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance, unless, on request by or on behalf of the designated state concerned and in accordance with the relevant international instrument, the Court provides otherwise.

(7) The Court—

( a) may vary or discharge a forfeiture co-operation order on the application of any person claiming to own or have an interest in the property concerned or to be otherwise affected by the order and may in that connection consult the court which made the external forfeiture order, and

( b) shall—

(i) vary a forfeiture co-operation order in accordance with any variation in the external forfeiture order, and

(ii) if satisfied that the external forfeiture order has been revoked, discharge it.

(8) The Police (Property) Act 1897 does not apply to property which vests in the Commissioner of the Garda Síochána by virtue of this section.

(9) This section applies to any property which is in the possession of the Garda Síochána under section 61(4) of the Act of 1994.

(10) Nothing in this section affects any enactment whereby property is, or may be ordered to be, forfeited as a result of a conviction for an offence.

Annotations:

Modifications (not altering text):

C2

Functions transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2).

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of —

(a) the enactments specified in Schedule 1, and

(b) the statutory instruments specified in Schedule 2,

are transferred to the Minister for Public Expenditure and Reform.

...

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

...

Schedule 1

Enactments

...

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

...

No. 7 of 2008

...

...

Criminal Justice (Mutual Assistance) Act 2008

...

...

Sections 42 and 60(6)

...

F38 [ Part 4A

Financial Penalties ]

Annotations:

Amendments:

F38

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Annotations:

Amendments:

F38

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F39

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C3

Prospective affecting provision: Part 4A inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 24, not commenced as of date of revision.

60A.

F39 [ Interpretation

60A. ... ]

Annotations:

Amendments:

F39

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C4

Prospective affecting provision: section inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F39 [ 60A. In this Part

appropriate court , in relation to an external financial penalty order, means a court in the State that has jurisdiction to impose a financial penalty of the same amount as the sum mentioned in the external financial penalty order;

certificate means the certificate provided for in Article 4 of the 2005 Framework Decision, the standard form of which is provided for in the Annex to that Framework Decision;

competent authority , in relation to a member state, means

(a) the issuing judicial authority in the member state, or

(b) the authority in the member state that the General Secretariat of the Council of the European Union has, in accordance with Article 2 of the 2005 Framework Decision, been informed is to be the competent authority in that member state;

executing state , in relation to a financial penalty order, means the member state to which the order is transmitted for enforcement;

external financial penalty order means a financial penalty order that is made by an issuing judicial authority in an issuing state;

financial penalty , in relation to a defendant, means an obligation for the defendant to pay, further to a conviction for an offence, in an issuing state or the State

(a) a fine, costs or any other sum of money to the issuing state or the State, as the case may be,

(b) a sum as compensation for the benefit of a victim of the offence, or

(c) a sum of money to a public fund or victim support organisation;

financial penalty order , means an order of

(a) a court in the State imposing a financial penalty, or

(b) an issuing judicial authority in an issuing state imposing a financial penalty that is enforceable under the law of that state;

issuing judicial authority , in relation to an external financial penalty order, means a judicial authority in an issuing state, as defined in the law of that state, which makes, validates or in any way confirms the external financial penalty order;

issuing state , in relation to an external financial penalty order, means the member state in which that order was made. ]

60B.

F40 [ Request for execution of financial penalty order in member state

60B. ... ]

Annotations:

Amendments:

F40

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C5

Prospective affecting provision: section inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F40 [ 60B. (1) If a financial penalty order relates to a defendant who has property or income, or is normally resident, in a member state, the registrar or clerk of the court concerned shall, on request of the prosecuting authority and subject to any conditions that may be specified by rules of court, give to the Central Authority

(a) a duly authenticated copy of the order, and

(b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

(2) If the financial penalty which is the subject of the financial penalty order has not been paid in whole or in part, the Central Authority may transmit to the competent authority in the member state concerned

(a) the documents mentioned in subsection (1) ,

(b) a certificate, and

(c) a request that the financial penalty order be executed in accordance with the 2005 Framework Decision.

(3) Where the Central Authority makes a request under subsection (2)

(a) if all or part of the financial penalty order has not been executed in the State or in another member state, stating the amount paid and requesting that the amount to be paid in the member state concerned not exceed the difference between the amount specified in the financial penalty order and the amount paid, and

(b) if the defendant has made any voluntary payment in respect of the financial penalty order after it was transmitted, stating the amount of that voluntary payment and requesting that the amount to be paid to the member state concerned not exceed the difference between the amount specified in the financial penalty order and the amount paid voluntarily, and

(c) if the financial penalty order ceases to be enforceable, stating that fact.

(4) If

(a) an amount is paid to the member state concerned in pursuance of a request under subsection (2) , and

(b) the amount paid is less than, or equal to, the amount ordered to be paid under the financial penalty order,

the amount so ordered under the financial penalty order is deemed to be reduced by an amount equal to the amount paid or, as the case may be, the financial penalty order is deemed to be discharged.

(5) In any proceedings a certificate purporting to be issued by a competent authority in a member state and stating

(a) the amount of any payment made to the member state pursuant to the request, and

(b) the date of that payment,

is admissible, without further proof, as evidence of those matters.

(6) Transmission of documents referred to in subsections (2) and (3) shall be by any means capable of producing a written record under conditions which allow the competent authority concerned to establish the documents authenticity. ]

60C.

F41 [ Transmission to State of external financial penalty order

60C. ... ]

Annotations:

Amendments:

F41

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C6

Prospective affecting provision: section inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F41 [ 60C. (1) An external financial penalty order may be transmitted by the competent authority of an issuing state to the Central Authority with a request for its execution.

(2) The external financial penalty order shall be accompanied by

(a) a certificate signed and certified as accurate by the competent authority in the issuing state and any supporting documentation, and

(b) any required translations,

and shall include any further information required by the 2005 Framework Decision.

(3) Transmission of the documents referred to in subsections (1) and (2) shall be by any means capable of producing a written record under conditions which allow the Central Authority or the appropriate court to establish the documents authenticity.

(4) Subsection (3) is deemed to have been complied with if facsimile copies of those documents and any translation thereof are transmitted in compliance with any regulations that may be made under subsection (6) .

(5) If the Central Authority or the appropriate court is not satisfied that a facsimile copy of a document transmitted in accordance with this section corresponds to the document of which it purports to be such a copy, the Central Authority or the appropriate court shall

(a) request the competent authority in the issuing state to cause the original or a copy of the document to be transmitted to the Central Authority, and

(b) agree with that competent authority regarding the manner in which the original or copy is to be so transmitted.

(6) The Minister may, if he or she considers it necessary for the purposes of ensuring the accuracy of documents transmitted in accordance with this section, make regulations

(a) prescribing procedures to be followed in connection with the transmission of documents in accordance with this section, and

(b) specifying features to be present in any equipment being used in that connection. ]

60D.

F42 [ External financial penalty orders

60D. ... ]

Annotations:

Amendments:

F42

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C7

Prospective affecting provision: section inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F42 [ 60D. (1) Where the Central Authority receives an external financial penalty order that has been transmitted by a competent authority in an issuing state, it shall proceed to the execution of that order as though it were an order of an appropriate court.

(2) Where the Central Authority considers that there are grounds for refusal, variation or termination of the execution of an external financial penalty order transmitted to it in accordance with the 2005 Framework Decision, the Central Authority shall cause an application to be made to the appropriate court for an order under section 60E , 60F or 60G .

(3) Where the Central Authority proceeds to execute an external financial penalty order that has been transmitted by a competent authority in an issuing state, the Fines (Payment and Recovery) Act 2014 shall apply to the execution of that financial penalty order as though it were an order of an appropriate court.

(4) Where a sum of money payable or remaining to be paid under an external financial penalty order is expressed in a currency other than euro, the external financial penalty order shall require payment of an equivalent euro amount, calculated at the baseline rate of exchange prevailing between that currency and the euro on the date of the making of the external financial penalty order. ]

Editorial Notes:

E18

Prospective affecting provision: provision made for compensation arising from default in execution of order under section by Criminal Justice Act 1994 (15/1994), s. 65(4A), as inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015) s. 34, not commenced as of date of revision.

60E.

F43 [ Refusal to execute external financial penalty order

60E. ... ]

Annotations:

Amendments:

F43

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C8

Prospective affecting provision: section inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F43 [ 60E. (1) On application made under section 60D(2) and without prejudice to section 3 , the appropriate court shall make an order refusing the execution of an external financial penalty order made by an issuing judicial authority if

(a) a financial penalty order has been made in the State against the defendant in respect of the conduct which resulted in the making of the external financial penalty order,

(b) a financial penalty order has been made in a state other than the issuing state or the State, in respect of the conduct which resulted in the making of the external financial penalty order, and has been executed,

(c) the conduct which resulted in the making of the external financial penalty order is not an offence in the State,

(d) the execution of the financial penalty order is statute barred in the State,

(e) the criminal conduct concerned was either committed outside the territory of the issuing state concerned or committed wholly or partly in the State,

(f) there is immunity or privilege under the law of the State which makes it impossible to execute the external financial penalty order,

(g) the defendant could not have been convicted in the State of an offence in respect of the conduct which resulted in the making of the external financial penalty order because of his or her age,

(h) the defendant did not appear in person at the proceedings resulting in the external financial penalty order, unless the certificate from the issuing judicial authority states that

(i) he or she was summonsed to attend in person the proceedings, or he or she was otherwise made aware, by official notification, of the time when, and the place at which, those proceedings were to take place, and he or she was informed that an external financial penalty order could be made even if he or she did not appear,

(ii) he or she was aware of the proceedings concerned and was represented at those proceedings by a lawyer whom he or she appointed,

(iii) after having been served with the external financial penalty order and expressly informed of his or her right to a retrial or an appeal at which he or she would have been able to participate (and which would have been an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could have led to a reversal of the original decision, he or she

(I) expressly stated that he or she did not contest the external financial penalty order, or

(II) did not request the retrial or appeal within the time limit for exercising that right,

or

(iv) where he or she was not personally served with the external financial penalty order, an undertaking has been given by the issuing state concerned that he or she will be personally served with the external financial penalty order without delay and will be expressly informed of his or her right to a retrial or an appeal in which he or she will be able to participate (and which will be an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could lead to a reversal of the order, and of the time limit for exercising that right,

or

(i) the amount of the financial penalty the subject of the external financial penalty order is less than 70.

(2) If the certificate did not accompany the external financial penalty order, or is incomplete or manifestly does not correspond to the external financial penalty order, the appropriate court

(a) may permit the certificate, or a completed or corrected certificate, to be produced by or on behalf of the court concerned in accordance with a specified deadline, or

(b) may refuse to execute the external financial penalty order, unless it is satisfied, by the production of an equivalent document or otherwise, that the information provided by or on behalf of the court concerned is sufficient. ]

60F.

F44 [ Variation of amount payable under external financial penalty order

60F. ... ]

Annotations:

Amendments:

F44

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C9

Prospective affecting provision: section inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F44 [ 60F. On application made under section 60D(2) and without prejudice to section 3, the appropriate court may make an order

(a) where that court is satisfied that, had the conduct which was the subject of the conviction on which that external financial penalty order was made been carried out in the State, the maximum amount of a penalty that could have been imposed was less than the sum mentioned in that order, reducing the amount that the defendant is to pay to that maximum amount,

(b) where the court is satisfied that there has been partial payment of the sum mentioned in the external financial penalty order, reducing the amount that the defendant is to pay to the difference between the sum mentioned in the order and the amount already paid, or

(c) where the court is satisfied that, in all the circumstances, the defendant should be excused from paying all or part of the sum mentioned in the external financial penalty order, ordering that the amount be so reduced. ]

60G.

F45 [ Termination of execution of external financial penalty order

60G. ... ]

Annotations:

Amendments:

F45

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C10

Prospective affecting provision: section inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F45 [ 60G. Where an external financial penalty order has been transmitted to the Central Authority for execution in the State, the execution of the external financial penalty order shall terminate as soon as may be after the Central Authority is informed by the competent authority of the issuing state concerned that that external financial penalty order has ceased to be enforceable or has been withdrawn by that issuing state or where the court is satisfied on an application made under section 60D(2) that, in all the circumstances, the defendant should be excused from paying all or part of the sum mentioned in the external financial penalty order, ordering that the amount be so reduced. ]

60H.

F46 [ Central Authority to inform competent authority

60H. ... ]

Annotations:

Amendments:

F46

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C11

Prospective affecting provision: section inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F46 [ 60H. The Central Authority shall inform, by any means capable of producing a written record, the competent authority in the issuing state that transmitted an external financial penalty order of the following:

(a) the Central Authority has received the external financial penalty order, as soon as may be after the Central Authority receives it;

(b) an order refusing the execution of the financial penalty order under section 60E , or reducing the amount to be paid on foot of it under section 60F , has been made, as soon as may be after it is made;

(c) an order terminating the execution of the external financial penalty order has been made, as soon as may be after it is made;

(d) the execution of the external financial penalty order is complete, as soon as may be after it is complete; or

(e) imprisonment or another alternative sanction has been imposed by a court in the State on the defendant in accordance with Article 10 of the 2005 Framework Decision, as soon as may be after it is imposed. ]

60I.

F47 [ Amounts to accrue to Exchequer

60I. ... ]

Annotations:

Amendments:

F47

Inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

Modifications (not altering text):

C12

Prospective affecting provision: section inserted by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 24, not commenced as of date of revision.

F47 [ 60I. An amount paid on foot of an external financial penalty order shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct, unless an agreement is made between the Central Authority and the competent authority in the issuing state concerned that all or part of that amount will be paid to that issuing state. ]

PART 5

Provision of Evidence

Chapter 1

Interpretation

61.

Interpretation ( Part 5).

61.— In this Part—

“evidence” does not include information provided under Part 2 in relation to financial transactions;

“place” includes premises;

“witness” includes an expert witness and a person suspected of the offence which has given rise to the request concerned.

Chapter 2

Taking of Evidence

62.

Evidence from person in designated state.

62.— (1) Where it appears to a judge at a sitting of any court that criminal proceedings have been instituted or a criminal investigation is taking place in the State, the judge may issue a letter (a “letter of request”) requesting assistance in obtaining from a person in a designated state such evidence as is specified in the letter for use in the proceedings or investigation.

(2) Application for a letter of request may be made by the Director of Public Prosecutions or a person charged in any such proceedings that have been instituted.

(3) The letter of request shall be sent to the Central Authority for transmission to the appropriate authority.

(4) Notwithstanding subsections (1) to (3), where proceedings in respect of an offence have been instituted or a criminal investigation is taking place, the Director of Public Prosecutions may issue and transmit a letter of request directly to the appropriate authority.

(5) The letter of request shall include—

( a) a statement that the evidence is required for the purpose of criminal proceedings or a criminal investigation,

( b) a brief description of the conduct constituting the offence concerned, and

( c) any other available information that may assist the appropriate authority in complying with the request.

(6) Evidence obtained by virtue of this section shall not, without the consent of the appropriate authority, be used for any purpose other than that permitted by the relevant international instrument or specified in the letter of request.

(7) When any such evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to the appropriate authority unless the authority indicates that it need not be returned.

(8) A statement of the evidence of a witness—

( a) taken in accordance with a letter of request, and

( b) certified by or on behalf of the court, tribunal or authority by which it was taken to be an accurate statement of the evidence,

is admissible, without further proof, in proceedings relating to the offence concerned as evidence of any fact stated therein of which oral evidence would be so admissible.

(9) A court, when considering whether any evidence taken from a person pursuant to a letter of request should be excluded in the exercise of its discretion to exclude evidence otherwise admissible, shall, where appropriate, have regard to—

( a) whether the law of the state concerned allowed the person and any other party concerned, when the evidence was being taken, to be legally represented and cross-examined, and

( b) any other respects in which the taking of the evidence may have differed from the taking of comparable evidence in the State.

(10) Nothing in this section prevents the Director of Public Prosecutions from issuing a letter of request for assistance in obtaining a statement of evidence or taking possession of material evidence in a designated state for the purposes of criminal proceedings or a criminal investigation where the witness or witnesses concerned will give evidence in those proceedings or any proceedings that may be instituted after the investigation.

(11) In this section, “appropriate authority”, in relation to the place where the evidence is to be obtained, means—

( a) a court or tribunal specified in the letter of request and exercising jurisdiction in that place, or

( b) any other authority recognised by the government of the state concerned as the appropriate authority for receiving the letter.

63.

Evidence for use in designated state.

63.— (1) This section applies, subject to section 64 , in relation to a request for assistance in obtaining evidence in the State from a person (in this section referred to as a “witness”) for the purpose of criminal proceedings, or a criminal investigation, in a designated state.

(2) On receipt of such a request the Minister, if of opinion that this section applies in relation to it, may, subject to subsection (3)

( a) request the President of the District Court to nominate a judge of that Court to receive the evidence to which the request relates, and

( b) send the judge a copy of the request and of any accompanying or related documents.

(3) The Minister shall not exercise the power conferred by subsection (2) unless an assurance is given by the requesting authority that any evidence that may be supplied in response to the request will not, without the consent of the nominated judge or the witness, be used for any purpose other than that permitted by the relevant international instrument or specified in the letter of request.

(4) For the purposes of this section the nominated judge—

( a) has the powers of the District Court in criminal proceedings, including its powers—

(i) in relation to securing the attendance of witnesses, the production of documents or other articles, taking evidence on oath, compelling witnesses to give evidence or to produce documents or other things and the conduct generally of the proceedings for the taking of evidence, and

(ii) under any enactment or rule of law relating to the protection of witnesses against intimidation,

( b) may direct that the evidence, or any part of it, be received otherwise than in public if of opinion that such a direction is necessary to protect—

(i) the witness or other person, or

(ii) confidential or sensitive information, and

( c) shall inform the witness of his or her rights under section 64 .

(5) The evidence may be given through a live television link in any case where it may be so given in proceedings under any enactment.

(6) Any person who is summoned to give evidence and who, without reasonable excuse, does not answer any question or comply with a requirement to produce any document or other thing is guilty of an offence and liable, on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

(7) The Bankers’ Books Evidence Act 1879 applies to proceedings under this section as it applies to other proceedings before a court.

(8) No order for costs may be made in the proceedings.

64.

Privilege of witnesses.

64.— (1) A person is not compelled to give any evidence in proceedings under section 63 which he or she could not be compelled to give—

( a) in criminal proceedings in the State, or

( b) subject to subsection (2), in criminal proceedings in the state concerned.

(2) Subsection (1)(b) does not apply unless the claim of the person to be exempt from giving the evidence is conceded by the requesting authority.

(3) Where the claim is not conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but the evidence shall not be transmitted to the requesting authority if a court in the state concerned, on the matter being referred to it, upholds the claim.

(4) Without prejudice to subsection (1), a person may not be compelled under this section to give any evidence—

( a) in his or her capacity as an officer or servant of the State, or

( b) if to do so would be prejudicial to the security of the State.

(5) In any proceedings referred to in subsection (1) a certificate purporting to be signed by or on behalf of the Minister to the effect that it would be prejudicial to the security of the State for a person to give any evidence is admissible, without further proof, as evidence of that fact.

(6) In this section references to giving evidence include references to answering any question and to producing any document or other thing, and the reference in subsection (3) to the transmission of evidence given by a person is to be construed accordingly.

Evidence of prisoners

65.
65

Transfer of prisoner to give evidence or assist criminal investigation in State.

65.— (1) In this section, “prisoner” means a person who is detained in custody in a designated state—

( a) under a sentence or order of a court exercising criminal jurisdiction in that state, or

( b) having been transferred there from the State under section 5 (issue of warrants for the transfer of sentenced prisoners outside State) of the Transfer of Sentenced Prisoners Act 1995.

(2) Where—

( a) a witness order has been made or a witness summons issued in criminal proceedings in respect of a prisoner, or

( b) it appears to the Minister that it is desirable for a prisoner to be identified in, or otherwise to assist by his or her presence, such proceedings or a criminal investigation,

the Minister, at the request of the Director of Public Prosecutions or a person charged in any such proceedings, may issue a warrant providing for the prisoner to be transferred to the State.

(3) A warrant shall not be issued unless the appropriate authority in the designated state concerned provides a written statement by the prisoner consenting to be transferred for that purpose.

(4) A warrant issued under this section shall be transmitted by the Central Authority to the authority in the designated state that appears to the Central Authority to be the appropriate authority for receiving it, together with a request for the transfer of the prisoner to the State.

(5) The warrant is authority for—

( a) bringing the prisoner to the State,

( b) taking the prisoner to, and detaining him or her in, a prison,

( c) taking the prisoner to and from the place where the prisoner’s evidence is to be heard, and

( d) returning the prisoner in custody to the designated state.

(6) A prisoner is deemed to be in lawful custody while in the State.

(7) A prisoner who escapes from custody or is unlawfully at large may be arrested without warrant by a member of the Garda Síochána and taken in custody to a prison.

(8) A person (other than a member of the Garda Síochána) who is authorised to have custody of a prisoner by or for the purposes of a warrant under this section is deemed to be such a member for the purposes of this section.

(9) The law relating to—

( a) the control of entry into the State of non-nationals (within the meaning of the Immigration Act 1999),

( b) the duration and conditions of their stay in the State,

( c) their obligations while in the State, and

( d) their removal from the State,

does not apply in relation to a prisoner who is a non-national while he or she is present in the State in pursuance of a warrant under this section but, if the warrant ceases to have effect while the prisoner is so present, that law shall thereupon apply, with any necessary modifications, in relation to him or her.

(10) A prisoner while in the State pursuant to the warrant may not be proceeded against, sentenced, detained or subjected to any other restriction on his or her personal freedom in respect of any offence committed before arriving in the State.

66.
66

Transfer of prisoner to give evidence or assist investigation outside State.

66.— (1) The Minister may, on receipt of a request in that behalf, issue a warrant for the transfer of a person serving a sentence of imprisonment in a prison (a “prisoner”) to a designated state for the purpose of—

( a) giving evidence in criminal proceedings, or assisting in a criminal investigation, in that state, or

( b) being identified in, or otherwise assisting by his or her presence, such proceedings or investigation.

(2) A warrant may be issued only if the prisoner has made a written statement consenting to his or her being transferred for that purpose.

(3) Where, by reason of the prisoner’s youth or physical or mental condition, it appears to the Minister inappropriate for the prisoner to act for himself or herself, the consent shall be given by a person appearing to the Minister to be an appropriate person to act on the prisoner’s behalf.

(4) A warrant is authority for—

( a) taking the prisoner from the prison and delivering him or her into the custody of a person representing the requesting authority concerned at a place of departure from the State,

( b) detaining the prisoner in the designated state, and

( c) bringing the prisoner back to the State and returning him or her to the prison.

(5) A warrant may not be issued unless an assurance is given by the requesting authority that the prisoner will not be proceeded against, sentenced, detained or subjected to any other restriction on his or her personal freedom in respect of any offence under the law of the designated state committed before the prisoner’s departure from the State.

(6) The period spent in custody under the warrant is included in the period of imprisonment or detention to be served by the prisoner in the State.

(7) A prisoner is deemed to be in lawful custody when being taken from or to a prison under the warrant.

(8) A prisoner who escapes from custody or is unlawfully at large may be arrested without warrant by a member of the Garda Síochána and taken in custody to a prison.

(9) A person (other than a member of the Garda Síochána) who is authorised to have custody of a prisoner by or for the purposes of a warrant under this section is deemed to be such a member for the purposes of this section.

Evidence through television link

67.
67

Evidence through television link for use in State.

67.— (1) This section applies where—

( a) criminal proceedings have been instituted in the State against a person,

( b) a witness in the proceedings is in a designated state, and

( c) it is not desirable or F48 [ practicable ] for the witness to give evidence in person.

(2) Where this section applies, an application may be made by or on behalf of the Director of Public Prosecutions or the accused to a judge of the court of trial at a sitting of the court to issue a letter (a “letter of request”) requesting the provision of facilities in the designated state concerned to enable the witness to give evidence in the proceedings through a live television link.

(3) The judge may grant the application if satisfied that it is not desirable or F48 [ practicable ] for the witness to give evidence in person.

(4) The letter of request shall be accompanied by a document signed by the judge and stating—

( a) the name, address and, if known, the nationality of the witness,

( b) the court which is to hear the evidence,

( c) the name of the judge conducting the hearing,

( d) why it is not desirable or F48 [ practicable ] for the witness to give evidence in person, and

( e) the likely date of the hearing.

(5) The request shall be sent to the Central Authority for transmission—

( a) in urgent cases, to the court or tribunal specified in the request, or

( b) in any other case, to any authority recognised by the state concerned as the appropriate authority for receiving such requests.

(6) If the name of the judge conducting the hearing is not available at the time the letter of request is issued, it shall be sent to the Central Authority for such transmission as soon as it becomes available.

(7) The accused shall be given an opportunity to cross-examine and re-examine the witness at the hearing.

(8) Evidence given through the live television link at the hearing shall be videorecorded.

(9) The videorecording of the evidence or, if the accused consents, an edited version of it, is admissible at the trial of the offence as evidence of any fact of which direct oral evidence would be admissible, unless the trial judge is of the opinion that to do so would not be in the interests of justice.

(10) The provisions of the relevant international instrument concerning a hearing through a live television link, in so far as they relate to a requesting state and are not incorporated in this section, have effect in the State, with the necessary modifications, in relation to a hearing under this section.

(11) A witness who makes a statement which is material in the proceedings and which he or she knows to be false or does not believe to be true is guilty of an offence and liable—

( a) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both, or

( b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.

(12) Proceedings for an offence under subsection (11) may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the State.

(13) In this section “videorecording” means any recording, on any medium, from which a moving image may be produced and includes the accompanying soundtrack, and cognate words shall be construed accordingly.

Annotations:

Amendments:

F48

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 25(a), (b) and (c), S.I. No. 11 of 2016.

68.
68

Request for evidence through television link for use outside State.

68.— (1) This section applies to a request for a witness who is present in the State to give evidence through a television link in criminal proceedings before a court or tribunal in a designated state.

(2) The request shall include the following information:

( a) the name, address and, if known, the nationality of the witness;

( b) the court or authority making the request;

( c) the name of the person or persons who will conduct the hearing;

( d) a statement as to why it is not desirable or F49 [ practicable ] for the witness to give evidence in person;

( e) the likely date of the hearing.

Annotations:

Amendments:

F49

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 26, S.I. No. 11 of 2016.

69.
69

Action on request.

69.— The Minister, if of opinion—

( a) that it is not desirable or F50 [ practicable ] for the witness to give evidence in person in the state concerned, and

( b) that the request complies with section 68 ,

may request the President of the District Court to nominate a judge of that Court to summon the witness to attend at a suitable venue within the judge’s district for the purpose of giving effect to the request.

Annotations:

Amendments:

F50

Substituted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015), s. 27, S.I. No. 11 of 2016.

70.
70

Taking of the evidence.

70.— (1) The nominated judge of the District Court shall summon the witness concerned to give evidence through a live television link at a suitable venue within the district to which the judge is assigned.

(2) For the purpose of ensuring compliance with the request the nominated judge has the powers of the District Court in criminal proceedings, including its powers—

( a) in relation to securing the attendance of the witness, taking evidence on oath and compelling the witness to give evidence or to produce documents or other things, and

( b) under any enactment or rule of law relating to the protection of witnesses against intimidation.

(3) The evidence shall be given in accordance with the laws and procedures of the requesting state to the extent that they do not contravene the fundamental principles of the law of the State.

(4) In particular, the witness may not be compelled to give any evidence which he or she could not be compelled to give in criminal proceedings in the State or the designated state.

(5) Where necessary for the protection of the witness and in agreement with the requesting authority, the evidence may be taken otherwise than in public.

(6) Subject to subsection (7), the proceedings shall be conducted directly by, or under the direction of, a judge of the designated state in accordance with its own laws.

(7) Where the nominated judge is of opinion that the taking of evidence is not in accordance with the fundamental principles of the law of the State, he or she shall take immediate action to ensure that those principles are complied with.

(8) The nominated judge and the witness shall be assisted by an interpreter, where necessary.

(9) When the evidence has been taken, the nominated judge shall send a record of the evidence given by the witness to the Minister for transmission to the requesting authority, indicating—

( a) the date and place of the taking of the evidence,

( b) the name of the witness,

( c) the name and function of any other person present and participating in the proceedings,

( d) whether an oath was administered to the witness, and

( e) the technical conditions under which the proceedings took place.

(10) A witness who—

( a) makes a statement material in the proceedings which he or she knows to be false or does not believe to be true, or

( b) does not testify when under an obligation to do so,

is guilty of an offence and liable—

(i) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both, or

(ii) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.

Evidence by telephone link for use outside State

71.
71

Request for evidence by telephone link.

71.— (1) This section applies to a request for a witness who is present in the State to give evidence by telephone link in criminal proceedings before a court or tribunal in a designated state.

(2) The request shall include the following information:

( a) the name, address and, if known, the nationality of the witness;

( b) the court or tribunal which is to hear the evidence;

( c) the person or persons who will conduct the proceedings;

( d) a statement that the witness is willing to give evidence by telephone link in the proceedings;

( e) the likely date of the hearing.

72.
72

Taking of evidence.

72.— (1) The Minister, if of opinion that the witness is willing to give evidence by telephone link in the proceedings concerned, may request the President of the District Court to nominate a judge of that Court to summon the witness to attend at a suitable venue within the judge’s district for the purpose of giving effect to the request.

(2) Before the evidence is taken, the witness shall be asked to confirm that he or she is willing to give the evidence by telephone link.

(3) Section 70 applies in relation to taking evidence under this section by telephone link as it applies in relation to taking evidence under that section by television link.

Search for evidence

73.
73

Search for evidence at place in designated state.

73.— (1) Where it appears to a judge at a sitting of any court that—

( a) criminal proceedings have been instituted or a criminal investigation is taking place, and

( b) evidence for the purposes of the proceedings or investigation may be obtained at a place in a designated state,

the judge may, in accordance with the relevant international instrument, issue a letter (a “letter of request”) requesting assistance in obtaining the evidence.

(2) Application for a letter of request may be made by the Director of Public Prosecutions or a person charged in any such proceedings that have been instituted.

(3) The letter of request shall be sent to—

( a) the Central Authority for transmission to the appropriate authority, or

( b) in urgent cases, directly to that authority.

(4) Notwithstanding subsections (1) to (3), where proceedings for an offence have been instituted or an offence is being investigated, the Director of Public Prosecutions may issue and transmit a letter of request directly to the appropriate authority.

(5) The letter of request shall include—

( a) a statement that the evidence is required for the purpose of criminal proceedings or a criminal investigation and will be returned to the appropriate authority when no longer required for that purpose, unless the authority indicates otherwise,

( b) information relating to the nature and location of the evidence concerned,

( c) a brief description of the conduct constituting the offence concerned, and

( d) any other available information that may assist the appropriate authority in complying with the letter of request.

(6) Evidence obtained by virtue of this section shall not, without the consent of the appropriate authority, be used for any purpose other than that permitted by the relevant international instrument or specified in the letter of request.

(7) When any such evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to the appropriate authority unless the authority indicates that it need not be returned.

(8) In any proceedings relating to the offence—

( a) evidence (other than documentary evidence) which purports—

(i) to have been obtained as a result of a request under this section, and

(ii) to be certified by or on behalf of the appropriate authority to be such evidence,

is admissible without further proof, and

( b) documentary evidence which purports—

(i) to have been so obtained, and

(ii) to be so certified,

is admissible, without further proof, as evidence of any fact stated in it of which oral evidence would be admissible.

(9) In this section, “appropriate authority” means—

( a) a court or tribunal exercising criminal jurisdiction in the place in a designated state where the evidence referred to in the letter of request is to be obtained, or

( b) any other body or authority recognised by the government of that state as the appropriate authority for receiving the letter.

74.
74

Search for evidence for use outside State (general).

74.— (1) Subject to subsections (2) and (3), this section applies to a request for assistance in obtaining evidence for the purposes of criminal proceedings, or a criminal investigation, in a designated state, where there is power under any enactment to issue a warrant for the search of a place in respect of an offence constituted by the conduct giving rise to the request.

(2) This section does not apply to such a request from a member state unless the act is punishable—

( a) under the law of the State and the member state by imprisonment for a maximum period of at least 6 months, or

( b) under the law of the State by such imprisonment and under the law of the member state by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters.

(3) This section does not apply to such a request from a designated state (other than a member state) unless the conduct giving rise to the request is punishable under both the law of the State and the law of that state.

(4) The Minister, if of opinion that this section applies to the request, may, subject to subsection (5), send the request and any accompanying and related documents to the Commissioner of the Garda Síochána to arrange for the request to be complied with.

(5) In the case of a request from a designated state, the Minister may not proceed in accordance with subsection (4) unless an assurance is given by the requesting authority—

( a) that any evidence that may be supplied in response to the request will not, without the Minister’s prior consent, be used for any purpose other than that permitted by the relevant international instrument or specified in the request, and

( b) that the evidence will be returned when no longer required for the purpose so specified (or any other purpose for which such consent has been obtained), unless the Minister indicates that its return is not required.

(6) A member of the Garda Síochána shall not enter any place in furtherance of the request without the consent of the occupier or the entry being authorised by a warrant under this section.

(7) Unless the evidence sought is already in the possession of the Garda Síochána, a member of the Garda Síochána not below the rank of inspector shall, on production of a copy of the request and of any accompanying or related documents, apply to the judge of the District Court for the district where the place concerned is situated for a warrant under subsection (8).

(8) If, on the application, the judge is satisfied that this section applies to the request and it appears to him or her that there are reasonable grounds for believing that entry to any place is necessary for the purposes of complying with it, the judge may issue a warrant for the search of the place and any persons found there.

(9) The warrant shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other members or persons or both as the member thinks necessary—

( a) to enter the place named in the warrant at any time or times within one week of the date of its issue, on production, if so requested, of the warrant and, if necessary, by the use of reasonable force,

( b) to search it and any person found there,

( c) to access, examine, seize, take away and retain any material found there, or in the possession of a person present there at the time of the search—

(i) which the member reasonably believes to be evidence of, or relating to, the commission of the offence concerned or assets or proceeds deriving from criminal conduct in the designated state or their identity or whereabouts, or

(ii) whose retention is necessary to comply with the request,

( d) to make a copy of any document so seized and to take the copy away, and

( e) to take such other steps as appear to the member to be necessary for preserving any such material and preventing interference with it.

(10) Where material referred to in subsection (9) consists of or includes information in non-legible form, the warrant has effect as an order to produce the material, or to give access to it, in a form which is legible and in which it can be taken away.

(11) The warrant—

( a) does not confer any right to examine, seize, take away or retain documents which are subject to legal privilege or to have them produced or to be given access to them, and

( b) subject to paragraph (a) and subsection (14), has effect notwithstanding any other obligation as to secrecy or other restriction on the disclosure of information under any enactment or rule of law.

(12) A member acting under the warrant may—

( a) require any person present at the place where the search is being carried out to give his or her name and address to the member, and

( b) arrest without warrant any person who—

(i) obstructs or attempts to obstruct the member in carrying out his or her duties,

(ii) does not comply with a requirement under paragraph (a), or

(iii) gives a name or address which the member has reasonable cause for believing is false or misleading.

F51 [ (12A) Where the evidence sought is already in the possession of the Garda S í och á na, or where material referred to in subsection (9) is obtained on foot of a warrant under this section, the Commissioner of the Garda S í och á na shall arrange for the evidence to be transmitted, to the requesting authority

(a) without delay,

(b) in accordance with the request, and

(c) in accordance with any directions that the Minister may give. ]

F51 [ (12B) Any evidential material taken away by a member of the Garda S í och á na under this section may be dealt with in accordance with the request. ]

(13) A person who—

( a) obstructs or attempts to obstruct a member acting under the authority of a warrant under this section,

( b) does not comply with a requirement under subsection (12)(a), or

( c) gives a false or misleading name or address to a member,

is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

(14) Where—

( a) material has been supplied to a Government department or other authority by or on behalf of the government of another state, and

( b) an undertaking was given that the material would be used only for a particular purpose or purposes,

an order under this section does not have the effect of requiring or permitting the production of, or the giving of access to, the material for any other purpose without the consent of that government.

(15) The power to issue a warrant under this section is without prejudice to any other power conferred by statute to issue a warrant for the search of any place or person.

(16) In this section—

“evidence” includes evidence of or relating to assets or proceeds deriving from criminal conduct in the designated state concerned or their identity or whereabouts;

“member state” includes the Swiss Confederation.

Annotations:

Amendments:

F51

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015, s. 28, S.I. No. 11 of 2016.

75.
75

Search for particular evidence for use outside State.

75.— (1) Subject to subsections (2) and (3), this section applies to a request for assistance in obtaining specified evidential material or evidential material of a specified description for the purposes of criminal proceedings, or a criminal investigation, in a designated state, where there is power under any enactment to issue a warrant for the search of a place in respect of an offence constituted by the conduct giving rise to the request.

(2) This section does not apply to such a request from a member state unless the act is punishable—

( a) under the law of the State and the member state by imprisonment for a maximum period of at least 6 months, or

( b) under the law of the State by such imprisonment and under the law of the member state by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters.

(3) This section does not apply to such a request from a designated state (other than a member state) unless the conduct giving rise to the request is punishable under both the law of the State and the law of that state.

(4) This section also applies to such a request from a member state which is made in connection with a request under Part 4 for the freezing of evidence in proceedings for an offence which may be punished in that state by imprisonment for a term of not less than 3 years.

(5) The Minister, if of opinion that this section applies to the request, may, subject to subsection (6), send the request and any accompanying and related documents to the Commissioner of the Garda Síochána to arrange for the request to be complied with.

(6) The Minister shall not proceed in accordance with subsection (5) unless an assurance is given by the requesting authority—

( a) that any material that may be furnished in response to the request will not, without his or her prior consent, be used for any purpose other than that permitted by the relevant international instrument or specified in the request, and

( b) that the material will be returned when no longer required for the purpose so specified (or any other purpose for which such consent has been obtained), unless he or she indicates that its return is not required.

(7) A member of the Garda Síochána shall not enter any place in furtherance of the request without the consent of the occupier or the entry being authorised by an order under this section.

(8) Unless the material sought is already in the custody of the Garda Síochána, a member of the Garda Síochána not below the rank of inspector shall, on production of a copy of the request and of any accompanying or related documents, apply to the judge of the District Court for the district where the evidential material is situated for an order under subsection (10).

F52 [ (8A) Where the material sought is already in the custody of the Garda S í och á na or has been obtained on foot of an order under subsection (10) , the Commissioner of the Garda S í och á na shall arrange for the material to be transmitted to the requesting authority

(a) without delay,

(b) in accordance with the request, and

(c) in accordance with any directions that the Minister may give. ]

(9) If, on the application, the judge is satisfied that this section applies to the request and it appears to him or her that there are reasonable grounds for believing that the person named in the request possesses the evidential material, the judge may make an order under subsection (10).

(10) An order under this subsection—

( a) shall require any person who appears to the judge to be in possession of the evidential material—

(i) to produce it to a named member of the Garda Síochána so that he or she may take it away, or

(ii) to give the member access to it, either immediately or within a period specified in the order,

( b) may, if the order relates to evidential material at any place and on application by a member of the Garda Síochána, require any person who appears to the judge to be entitled to grant entry to the place to allow the member to enter it to obtain access to the material,

( c) shall authorise such a member, if the person who is so required to grant entry to the place does not do so—

(i) to enter the place, accompanied by such other members or persons or both as the member thinks necessary, on production if so requested of the order and, if necessary, by the use of reasonable force,

(ii) to search the place and any persons present there,

(iii) to access, examine, seize, take away and retain any evidential material which is found at the place or in the possession of a person so present and which the member reasonably believes to be the material concerned, and

(iv) to take such other steps as appear to the member to be necessary for preserving the evidential material and preventing interference with it.

(11) Where the evidential material consists of information contained in a computer, an order under this section has effect as an order to produce the material, or to give access to it, in a form which is legible and comprehensible or can be made so and in which it can be taken away.

(12) Such an order—

( a) in so far as it may empower a member of the Garda Síochána to take away a document or to be given access to it, authorises him or her to make a copy of it and to take the copy away,

( b) does not confer any right to production of, or access to, any evidential material subject to legal privilege, and

( c) subject to paragraph (b) and subsection (17), has effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.

(13) Any evidential material taken away by a member of the Garda Síochána under this section shall be dealt with in accordance with the request.

(14) A judge of the District Court may at a sitting of the Court vary or discharge an order under this section on the application of a member of the Garda Síochána or of any person to whom the order relates.

(15) A member searching a place under the authority of an order under subsection (10) may—

( a) require any person present at the place where the search is being carried out to give his or her name and address to the member, and

( b) arrest without warrant any person who—

(i) obstructs or attempts to obstruct the member in carrying out his or her duties,

(ii) fails to comply with a requirement under paragraph (a), or

(iii) gives a name or address which the member has reasonable cause for believing is false or misleading.

(16) A person who—

( a) obstructs or attempts to obstruct a member of the Garda Síochána acting under the authority of an order under this section,

( b) fails to comply with a requirement in an order under this section, or

( c) gives a false or misleading name or address to a member,

is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

(17) Where—

( a) material has been supplied to a Government department or other authority by or on behalf of the government of another state,

( b) an undertaking was given that the material would be used only for a particular purpose or purposes,

an order under this section does not have the effect of requiring or permitting the production of, or the giving of access to, the material for any other purpose without the consent of that government.

(18) This section is without prejudice to section 74 .

(19) In this section—

“evidential material” includes any such material relating to assets or proceeds deriving from criminal conduct in the designated state concerned or their identity or whereabouts;

“member state” includes the Swiss Confederation.

Annotations:

Amendments:

F52

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015, s. 29, S.I. No. 11 of 2016.

75A

F53 [ Powers of officers of Revenue Commissioners

75A. Where a request under section 74 or 75 is in relation to a revenue offence, the powers of a member of the Garda S í och á na may also be exercised by an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section, and sections 74 and 75 apply, subject to the following and any other necessary modifications:

(a) a reference to the Commissioner of the Garda S í och á na shall be read, in relation to such a request, as a reference to the Revenue Commissioners ;

(b) a reference to a member , in relation to the Garda S í och á na, shall be read, in relation to such a request, as including a reference to an officer of the Revenue Commissionersauthorised by them in writing to exercise the powers conferred by this section ;

(c) a reference to evidence being in the possession of the Garda S í och á na shall be read, in relation to such a request, as including a reference to its being in the possession of the Revenue Commissioners ;

(d) a reference to a member of the Garda S í och á na not below the rank of inspector shall be read, in relation to such a request, as including a reference to an officer of the Revenue Commissioners not below the rank of Higher Executive Officer ;

(e) a reference to material being in the custody of the Garda S í och á na shall be read as including a reference to its being in the custody of the Revenue Commissioners . ]

Annotations:

Amendments:

F53

Inserted (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2015, s. 30, S.I. No. 11 of 2016.

Editorial Notes:

E19

The section heading is taken from the amending section in the absence of one included in the amended section.

Chapter 3

Identification evidence

Annotations:

Modifications (not altering text):

C13

Further provisions regarding taking of certain identification evidence under Act prescribed (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 155, S.I. 508 of 2015.

Further provisions regarding taking of samples under this Act or certain identification evidence under Act of 2008 or Act of 2006

155. (1) A sample under this Act or identification evidence under the Act of 2008 or the Act of 2006—

(a) shall be taken from a person in circumstances affording reasonable privacy to the person, and

(b) shall not be taken from a person in the presence or view of a person whose presence is not necessary for the purposes of the taking of the sample or that identification evidence, as the case may be, or required or permitted by this Act or each of those Acts, as the case may be.

(2) Nothing in this Act authorises the taking of a sample or such identification evidence from a person in a cruel, inhuman or degrading manner.

(3) A sample shall not be taken under Part 2 from a person who is in custody under any of the provisions referred to in section 9(1) while he or she is being questioned under that provision and, if questioning has not been completed before the sample is to be taken, it shall be suspended while the sample is being taken.

(4) In this section “identification evidence”—

(a) in the case of the Act of 2008, has the meaning given to it by section 76 of that Act other than a fingerprint, palm print or photograph of a person, and

(b) in the case of the Act of 2006, has the meaning given to it by section 50 of that Act other than a fingerprint, palm print, iris identification or photograph of a person.

76.

Definitions ( Chapter 3).

76.— F54 [ (1) ] In this Chapter—

F55 [ Act of 2014 means the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014; ]

“bodily sample” means any of the following:

( a) a sample of blood, hair, urine or saliva;

( b) a nail or any material found under a nail;

( c) a swab from any part of the body;

( d) a footprint or a similar impression of any part of the body, including a dental impression;

F55 [ child means a person who has not attained the age of 18 years;

F56 [ controller means a controller within the meaning of Part 5 of the Data Protection Act 2018; ]

data controller has the meaning it has in section 1 (1) of the Data Protection Act 1988 ; ]

“dentist” means a person whose name is entered for the time being in the Register of Dentists maintained under the Dentists Act 1985;

F55 [ DNA means deoxyribonucleic acid;

DNA profile , in relation to a person, means information comprising a set of identification characteristics of the non-coding part of DNA derived from an examination and analysis of a bodily sample or DNA sample from the person and that is capable of comparison with similar information derived from an examination and analysis of another sample of biological material for the purpose of determining whether or not that other sample could relate to that person;

DNA sample , in relation to a person, means a sample of hair other than pubic hair of the person or a swab from the mouth (including the inside of the mouth) of the person; ]

“doctor” means a person whose name is entered for the time being in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act 1978;

F55 [ guardian , in relation to a child (including a protected person who is a child), has the meaning it has in the Act of 2014; ]

F57 [ identification evidence , in relation to a person, means

( a ) a fingerprint, palm print or photograph of the person,

( b ) a bodily sample from the person or the DNA profile of the person generated from such a sample, or

( c ) a DNA sample from the person or the DNA profile of the person generated from such a sample,

and includes any related records; ]

F55 [ inadequately labelled and insufficient , in relation to a DNA sample, have the meanings they have in the Act of 2014; ]

F55 [ non-coding part of DNA , in relation to a person, means the chromosome regions of the person s DNA that are not known to provide for any functional properties of the person; ]

“nurse” means a person whose name is entered for the time being in the register of nurses established under section 27 of the Nurses Act 1985.

F55 [ parent , in relation to a protected person or a child, has the meaning it has in the Act of 2014;

protected person means, subject to subsection (2), a person (including a child) who, by reason of a mental or physical disability

( a ) lacks the capacity to understand the general nature and effect of the taking of identification evidence from him or her, or

( b ) lacks the capacity to indicate (by speech, sign language or any other means of communication) whether or not he or she consents to identification evidence being taken from him or her;

relevant offence has the meaning it has in the Act of 2014. ]

F58 [ (2) The reference in the definition of protected person in subsection (1) to a mental or physical disability in relation to a person (including a child) shall be construed as not including a reference to the person being under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances.

(3) In the application of this Chapter in relation to a protected person or a child who is married, the references in sections 79 and 79B to a parent or guardian of the person or child, as the case may be, shall be construed as references to his or her spouse. ]

Annotations:

Amendments:

F54

Section designated as subs. (1) (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 129(c), S.I. No. 508 of 2015.

F55

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 129(a), S.I. No. 508 of 2015.

F56

Inserted (25.05.2018) by Data Protection Act 2018 (7/2018), s. 208(a), S.I. No. 174 of 2018.

F57

Substituted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 129(b), S.I. No. 508 of 2015.

F58

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 129(d), S.I. No. 508 of 2015.

77.

Identification evidence for use in State.

77.— (1) Where it appears to a judge of any court that—

( a) criminal proceedings have been instituted or a criminal investigation is taking place, and

( b) identification evidence for the purposes of the proceedings or investigation may be obtained from an authority in a designated state,

the judge may issue a letter (a “letter of request”) requesting assistance in obtaining the evidence.

(2) Application for a letter of request may be made by the Director of Public Prosecutions or a person charged in any proceedings that have been instituted.

(3) The letter of request shall be sent to—

( a) the Central Authority for transmission to the appropriate authority, or

( b) in urgent cases, directly to that authority.

(4) Notwithstanding subsections (1) to (3), where proceedings for an offence have been instituted or an offence is being investigated, the Director of Public Prosecutions may issue and transmit a letter of request directly to the appropriate authority.

(5) The letter of request shall include—

( a) a statement that the evidence is required for the purpose of criminal proceedings or a criminal investigation and will be returned to the appropriate authority when no longer required for that purpose, unless the authority indicates otherwise,

( b) a brief description of the conduct constituting the offence concerned, F59 [ ]

F60 [ (ba) in the case of a request pursuant to Article 7 of the 2008 Council Decision, or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway, for the DNA profile of a person who is suspected of having committed the offence concerned whose DNA profile is not in the possession of the appropriate authority, a statement issued by the Commissioner of the Garda S í och á na or the Director of Public Prosecutions, as may be appropriate, confirming that the requirements for the taking of a DNA sample from the person under the law of the State would be complied with if the person were in the State, and ]

( c) any other available information that may assist the appropriate authority in complying with the request.

(6) Evidence obtained by virtue of this section shall not, without the consent of the appropriate authority, be used for any purpose other than that specified in the letter of request.

(7) When any such evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to the appropriate authority unless the authority indicates that it need not be returned.

(8) In any proceedings a document purporting to be—

( a) a report of the taking of the identification evidence in the designated state and to be signed by, and to state the rank or other qualification of, the person who took the evidence, or

( b) a record of the evidence kept by the appropriate authority and certified by it or on its behalf,

is admissible, without further proof, as evidence of the matters stated in it.

(9) In this section, “appropriate authority” means the authority in the designated state concerned appearing to the Director of Public Prosecutions to possess the identification evidence requested or to have the function of obtaining or arranging to obtain it.

Annotations:

Amendments:

F59

Deleted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 130(a), S.I. No. 508 of 2015.

F60

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 130(b), S.I. No. 508 of 2015.

Modifications (not altering text):

C14

Application of subs. (7) restricted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 125(7), S.I. No. 508 of 2015, subject to restriction in art. 2(g).

Correction of inaccurate data, destruction of incorrectly supplied data and storage of data

125.—...

(7) Subject to subsection (8) and notwithstanding section 77(7) of the Act of 2008, a data controller shall destroy data received pursuant to an Article 7 request when they are no longer required for the purpose for which they were supplied and, in any event, shall do so not later than the expiration of the maximum period (if any) prescribed by the law of the Member State concerned or Iceland or Norway, as the case may be, and specified by the authority in that Member State or Iceland or Norway, as the case may be, at the time the data were supplied.

(8) Where, under subsection (6) or (7), a national contact point or a data controller, as the case may be, reasonably believes that the destruction of the data concerned would prejudice the interests of the data subject, the data shall instead be blocked and those data may be supplied or otherwise further processed only for a purpose relating to the protection of those interests.

...

78.

Identification evidence for use outside State.

78. — F61 [ (1) ]A request for obtaining identification evidence for use in a designated state shall include—

( a) a statement that the evidence is required in connection with criminal proceedings, or a criminal investigation, in that state, F62 [ ]

F63 [ ( b ) a brief description of the conduct constituting the offence, ]

F64 [ ( c ) a statement of the purpose for which the evidence is sought,

( d ) a statement confirming that any evidence that may be furnished in response to the request will not, without the consent of the Minister, be used for any purpose other than that specified in the request, and

( e ) in the case of a request pursuant to Article 7 of the 2008 Council Decision, or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway, for the DNA profile of a person who is suspected of having committed the offence concerned whose DNA profile is not in the possession of the Garda S í och á na

(i) an investigation warrant in respect of the person, or

(ii) a statement issued by the competent authority in the member state concerned in connection with a criminal investigation in that member state confirming that the requirements for the taking of a DNA sample from the person under the law of that member state would be complied with if the person were in that member state.

(2) In this section

competent authority , in relation to a member state, means the authority in the member state that is competent to issue an investigation warrant or statement for the purposes of Article 7 of the 2008 Council Decision or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway;

investigation warrant means a warrant or order issued by the competent authority in a member state requiring a person to have identification evidence, other than fingerprints, palm prints or photographs, taken from him or her for the purposes of a criminal investigation, or criminal proceedings, in that member state. ]

Annotations:

Amendments:

F61

Section designated as subs. (1) (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 131(c), S.I. No. 508 of 2015.

F62

Deleted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 131(a), S.I. No. 508 of 2015.

F63

Substituted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 131(b), S.I. No. 508 of 2015.

F64

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 131(d), S.I. No. 508 of 2015.

79.

Action on request.

79.— (1) The Minister may send the request to the Commissioner of the Garda Síochána for the necessary action if satisfied—

( a) that it complies with section 78 ,

F65 [ ( b ) that the purpose for which the evidence is sought specified in the request, or any other purpose for which the consent of the Minister is sought, is one in respect of which the evidence could be obtained in the State if the criminal proceedings for, or the criminal investigation of, the offence concerned in the designated state concerned were being conducted in the State, and

( c ) that the evidence

(i) will be returned by the requesting authority

(I) when no longer required for the purpose specified in the request (or any other purpose for which the consent of the Minister has been obtained), unless the Minister indicates otherwise, or

(II) when requested by the Minister for the purposes of destroying the evidence

(A) to comply with a request to do so by or on behalf of the person to whom the identification evidence relates, or

(B) in accordance with section 4 of the Criminal Justice (Forensic Evidence) Act 1990 , Part 10 of the Act of 2014 or any statutory provision providing for the destruction of fingerprints, palm prints or photographs of persons, as may be appropriate,

or

(ii) will be dealt with in accordance with subsections (10) and (11) . ]

(2) If or in so far as F65 [ the identification evidence requested is not in the possession of the Garda S í och á na and subject to section 79A , the Commissioner shall instruct ] a member of the Garda Síochána (a “member”) to inform the person who is to provide the evidence—

( a) of the nature of the evidence,

( b) that it has been requested in connection with criminal proceedings, or a criminal investigation, in the designated state concerned,

( c) that he or she is not obliged to provide the evidence, F66 [ ]

F65 [ ( d ) that, if he or she does consent to provide it, it may be given in evidence in any proceedings in that state, and ]

F67 [ ( e ) that the evidence may be destroyed in accordance with this section. ]

(3) F65 [ Subject to subsections (11H) to (11Q) , if the person consents to provide the evidence ], the member may take the evidence, or cause it to be taken, in compliance with the request and any requirements specified in the request in relation to its taking.

(4) If a person who is to provide the identification evidence is in a prison—

( a) evidence may be taken under this section only if it relates to an offence other than that for which the person is in custody, and

( b) any evidence provided may be taken at the prison or at another place.

(5) A bodily sample consisting of blood, pubic hair or a swab from a body orifice (other than the mouth) or a genital region may be taken under this section only by a doctor or nurse, and a dental impression may be so taken only by a dentist or doctor.

(6) If required by the requesting authority, the Commissioner may arrange for a forensic test to be performed on a swab from a body orifice or a genital region.

(7) Where a sample of hair other than pubic hair is taken in accordance with this section—

( a) the sample may be taken by plucking hairs with their roots and, in so far as it is reasonably practicable, the hairs shall be plucked singly, and

( b) no more hairs shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing.

(8) The following particulars shall be recorded by the member who takes identification evidence:

( a) the place, time and date at which it was taken;

( b) the result of any forensic test on the evidence;

( c) any other relevant particulars, including any specified by the requesting authority,

and the record shall F67 [ ,if appropriate, ] include a copy of the consent to the taking of the evidence.

(9) The Commissioner shall send to the Central Authority any identification evidence—

( a) in the possession of the Garda Síochána, or

( b) F65 [ taken under subsection (3) or section 79A ] , together with a copy of the record made under subsection (8),

for transmission to the requesting authority.

F67 [ (9A) When transmitting the identification evidence to the requesting authority, the Minister may specify conditions regarding the use of the evidence.

(9B) Subject to subsections (10) and (11)

( a ) any identification evidence taken under subsection (3) or section 79A that is transmitted to the requesting authority and returned by that authority when no longer required for the purpose specified in the request (or any other purpose for which the consent of the Minister had been obtained) shall be destroyed as soon as practicable after its return, and

( b ) a DNA sample that is taken from a person under section 79A , and the DNA profile of the person generated from the sample, shall be destroyed when the Central Authority receives confirmation from the requesting authority that it has received the DNA profile of the person generated from the sample.

(9C) The provisions of subsections (7), (8), (9) and (11) of section 3 , and section 97 , of the Act of 2014 insofar as they apply to the destruction of samples and DNA profiles of persons under that Act shall apply, with any necessary modifications, in relation to the destruction of identification evidence, other than fingerprints, palm prints or photographs of persons, under subsection (9B) .

(9D) The provisions of section 8H of the Criminal Justice Act 1984 insofar as they apply to the destruction of fingerprints, palm prints or photographs of persons shall apply, with any necessary modifications, in relation to the destruction of fingerprints, palm prints or photographs of persons under subsection (9B) . ]

F65 [ (10) When transmitting the identification evidence to the requesting authority the Central Authority shall, if subsection (1) (c) (i) does not apply and subject to subsection (11) , obtain an assurance that the evidence, as well as the record of any analysis of the evidence, or any other record relating to it, that may be made in the requesting state, will be destroyed when no longer required for the purpose specified in the request concerned (or any other purpose for which the consent of the Minister is obtained) and, in any event, not later than the expiration of the period of 3 months from the date on which any of the following circumstances first apply to the person the subject of that request:

( a ) proceedings for an offence are not instituted against that person within the period of 12 months from the taking of the identification evidence concerned from him or her and the failure to institute such proceedings within that period is not due to the fact that he or she has absconded or cannot be found;

( b ) proceedings for an offence have been instituted against that person and he or she is acquitted or the charge against him or her is dismissed or the proceedings are discontinued;

( c ) that person

(i) in proceedings for an offence, is the subject of an order corresponding to or in the nature of a probation order under section 1 (1) or (2) of the Probation of Offenders Act 1907 , other than an order corresponding to or in the nature of an order under the said section 1(2) that is discharged on the appeal of that person against conviction for the offence if on appeal his or her conviction is affirmed, and

(ii) has not been convicted of an offence during the period of 3 years from the making of an order referred to in subparagraph (i) ;

( d ) that person is convicted of an offence and the conviction is quashed; or

( e ) that person is convicted of an offence and the conviction is declared to be a miscarriage of justice under the law of that state corresponding to section 2 of the Criminal Procedure Act 1993 .

(11) The Minister may, at the request of the requesting authority and having consulted the Commissioner, direct that the retention period in respect of identification evidence transmitted to the requesting authority be extended in accordance with an order made under subsection (11A) . ]

F67 [ (11A) If a judge of the District Court is satisfied, on an application in that behalf by the Commissioner, that there is good reason why identification evidence transmitted pursuant to a request should not be destroyed by the requesting authority in accordance with subsection (10) , or a request to do so under subsection (11R) , the judge may make an order authorising the retention of the identification evidence for such purpose permitted by this section for such period as he or she considers appropriate.

(11B) If the Commissioner intends to make an application under subsection (11A) , he or she shall inform by notice in writing the person from whom the identification evidence concerned was taken, and any person who gave consent to the taking of that identification evidence from that person, of that intention.

(11C) If, on an application under subsection (11A) , the person from whom the identification evidence was taken, or any other person who gave consent to the taking of that identification evidence from that person, applies to be heard by the judge of the District Court, an order shall not be made under that subsection unless a reasonable opportunity has been given to that person to be heard.

(11D) An application under subsection (11A) shall be made to a judge of the District Court who is assigned to the district court district in which the person from whom the identification evidence concerned was taken resides.

(11E) An application under subsection (11A) shall be heard otherwise than in public.

(11F) In determining an application under subsection (11A) , a judge of the District Court may make such order as to costs as the judge considers appropriate.

(11G) A notice under subsection (11B) may be sent or given to a person in one of the following ways:

( a ) by delivering it to the person or his or her solicitor;

( b ) by addressing it to the person and leaving it at the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, at that address or by addressing it to his or her solicitor and leaving it at the solicitor s office;

( c ) by sending it to the person by post in a prepaid registered letter to the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, to that address or to his or her solicitor at the solicitor s office.

(11H) Subject to subsection (11I) , in this section consent means

( a ) subject to paragraph (b) , in the case of a person who has attained the age of 18 years, the consent in writing of the person,

( b ) in the case of a protected person

(i) the consent in writing of a parent or guardian of the person, or

(ii) an order of the District Court under section 79B authorising the taking of the identification evidence concerned from the person,

( c ) in the case of a child (other than a protected person)

(i) who has attained the age of 14 years, the consent in writing of the child and either

(I) the consent in writing of a parent or guardian of the child, or

(II) an order of the District Court under section 79B authorising the taking of the identification evidence concerned from the child,

(ii) who has not attained the age of 14 years, either

(I) the consent in writing of a parent or guardian of the child, or

(II) an order of the District Court under section 79B authorising the taking of the identification evidence concerned from the child.

(11I) Where, in relation to the criminal proceedings for, or the criminal investigation of, the offence concerned in the designated state concerned, identification evidence is to be taken from a protected person or a child, the consent in writing of a parent or guardian of the protected person or child shall not be sought from a parent or guardian of the protected person or child, as the case may be, if

( a ) he or she is the victim of that offence in circumstances in which the protected person or child, as the case may be, is suspected of having committed that offence,

( b ) he or she has been arrested in respect of that offence,

( c ) a member not below the rank of inspector has reasonable grounds for suspecting him or her of complicity in that offence, or

( d ) a member not below the rank of inspector has reasonable grounds for believing that he or she is likely to obstruct the course of justice.

(11J) Subsection (11I) shall not prevent a parent or guardian of a protected person or a child who does not fall under paragraph (a), (b), (c) or (d) of that subsection from giving the consent required.

(11K) Before a member seeks the consent in writing of a parent or guardian of a protected person to the taking of identification evidence from the person, the member shall inform the parent or guardian of the matters referred to in subsection (2) in relation to the person.

(11L) Before a member seeks the consent in writing of a parent or guardian of a child to the taking of identification evidence from the child, the member shall inform the parent or guardian of the matters referred to in subsection (2) in relation to the child.

(11M) If a person withdraws a consent he or she had given to the taking of identification evidence under this section (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of the identification evidence, that withdrawal of consent shall be treated as a refusal to give consent to the taking of that identification evidence.

(11N) A withdrawal of consent under subsection (11M) shall be recorded in writing by a member as soon as practicable after such withdrawal.

(11O) Subject to subsections (11R) and (11S) , the consent of a person to the taking of identification evidence under this section may not be withdrawn after the identification evidence has been taken.

(11P) In this section references to a person giving his or her consent in writing to the taking of identification evidence under this section (whether from the person himself or herself or another person) shall include references to

( a ) the person signing a document, or

( b ) in case the person is unable to write, the person making his or her mark on a document,

to indicate his or her consent.

(11Q) The identification evidence concerned shall, if it is reasonably practicable to do so, be taken from a protected person or a child in the presence of the person who gave consent under this section for the taking of that identification evidence from the protected person or child, as the case may be, unless the protected person or child indicates that he or she does not wish to have that person present.

(11R) If the identification evidence taken under this section and transmitted pursuant to a request relates to a person who was not, at the time the evidence was taken, suspected of having committed the offence concerned in the designated state concerned, the person, or another person who gave consent to the taking of the identification evidence from the person, may by notice in writing sent or given to the Commissioner request the destruction of the evidence.

(11S) The Commissioner shall, following the receipt of a notice under subsection (11R) , inform the Minister of it and the Minister shall, subject to an order made under subsection (11A) , request the requesting authority to which the identification evidence concerned was transmitted to destroy the evidence as soon as practicable and, in any event, to do so not more than 4 months after the receipt by the Commissioner of the notice under subsection (11R) .

(11T) In this section and in section 79A a reference to identification evidence in the possession of the Garda S í och á na shall include a reference to identification evidence in the possession of Forensic Science Ireland of the Department of Justice and Equality. ]

F65 [ (12) In this section retention period means

( a ) in the case of identification evidence, other than a fingerprint, palm print or photograph of a person, the period from the taking of the evidence concerned from the person to the latest date for the destruction of that evidence under subsection (10) , and

( b ) in the case of identification evidence consisting of a fingerprint, palm print or photograph of a person (including any related records)

(i) 6 years from the taking of the evidence concerned from the person, or

(ii) if the person falls under paragraph (d) or (e) of subsection (10) , 3 months from the quashing of the conviction concerned or the declaration that the conviction concerned is a miscarriage of justice, as the case may be,

whichever is the later. ]

Annotations:

Amendments:

F65

Substituted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 132(a)-(c), (e), (g), (h), (j), S.I. No. 508 of 2015.

F66

Deleted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 132(b)(ii), S.I. No. 508 of 2015.

F67

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 132(b)(iii), (d), (f), (i), S.I. No 508 of 2015.

79A

F68 [ Request pursuant to Article 7 of 2008 Council Decision or that Article as applied by 2009 Agreement with Iceland and Norway

79A . (1) If the request for obtaining identification evidence for use in a member state under section 78

( a ) is pursuant to Article 7 of the 2008 Council Decision or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway, and

( b ) is for the DNA profile of a person who is suspected of having committed the offence concerned,

then, following compliance with section 79(1) , this section shall apply to the request if the identification evidence sought pursuant to the request is not in the possession of the Garda S í och á na.

(2) The Commissioner shall instruct a member of the Garda S í och á na to inform the person whose DNA profile is sought pursuant to the request that

( a ) his or her DNA profile has been requested by the member state concerned for the purposes of criminal proceedings, or a criminal investigation, in that member state,

( b ) if he or she consents to provide a DNA sample from which his or her DNA profile may be generated, the DNA profile will be transmitted to the member state concerned in accordance with this Chapter,

( c ) the DNA profile of the person may be given in evidence in any proceedings in the member state concerned, and

( d ) if he or she does not consent to provide a DNA sample, an application may be made to a judge of the District Court under subsection (5) for an order under that subsection.

(3) If the person concerned consents to provide a DNA sample, a member of the Garda S í och á na may take, or cause to be taken, a DNA sample from him or her.

(4) If the person concerned does not consent to provide a DNA sample, an application may be made for an order under subsection (5) .

(5) A judge of the District Court may, on an application in that behalf by a member of the Garda S í och á na not below the rank of superintendent, make an order

( a ) authorising the Garda S í och á na to send a notice to the person concerned requiring him or her to attend at a named Garda S í och á na station on a day, and at a time of day or between times of day, specified in the notice for the purpose of having a DNA sample taken from him or her, and

( b ) in the event of his or her failure or refusal to comply with the notice, authorising the Garda S í och á na to arrest the person concerned and detain him or her in a Garda S í och á na station for a period not exceeding 4 hours from the time the person concerned is arrested for that purpose,

if the judge is satisfied that

(i) the request concerned complies with section 79(1) , and

(ii) the conduct alleged to constitute the offence concerned would, if it took place in the State, constitute a relevant offence, and

(iii) the person concerned has not consented to the taking of a DNA sample from him or her pursuant to the request concerned.

(6) If an order is made under subsection (5) , a notice pursuant to the order may be sent by a member of the Garda S í och á na to the person concerned.

(7) A notice under subsection (6) shall, in the case of a child, also be sent to a parent or guardian of the child and, if the member of the Garda S í och á na sending the notice knows or believes that the person concerned to whom the notice is being sent is a protected person, the member shall also send the notice to a parent or guardian of the person.

(8) If the person concerned to whom a notice is sent under subsection (6) fails or refuses to comply with the notice, a member of the Garda S í och á na may arrest that person and detain him or her in a Garda S í och á na station for such period as is authorised by the order made under subsection (5) concerned for the purpose of having a DNA sample taken from him or her.

(9) If

( a ) the person concerned, in compliance with a notice sent to him or her under subsection (6) , attends at the Garda S í och á na station named in the notice, or

( b ) he or she fails or refuses to comply with a notice sent to him or her under subsection (6) and he or she is arrested and detained in a Garda S í och á na station,

for the purpose of having a DNA sample taken from him or her, a member of the Garda S í och á na may, subject to subsection (11) , take, or cause to be taken, a DNA sample from him or her.

(10) The provisions of sections 10(1), 14, 23 and 24, subsections (3) to (7) of section 21 and subsections (3) to (7) of section 22 , of the Act of 2014 insofar as they relate to the taking of a non-intimate sample (within the meaning of that Act) from a person shall apply, with any necessary modifications, to the taking of a DNA sample from a person under subsection (9) , (13) or (17) , as may be appropriate.

(11) Before a member of the Garda S í och á na takes, or causes to be taken, a DNA sample from a person under subsection (9) , (13) or (17) , the member shall, as may be appropriate, inform the person of the following:

( a ) that the DNA profile of the person has been requested by the member state concerned for the purposes of criminal proceedings, or a criminal investigation, in that member state;

( b ) that an order has been made by a judge of the District Court under subsection (5) authorising the sending of a notice to the person requiring him or her to attend at a named Garda S í och á na station on a day, and at a time of day or between times of day, specified in the notice, or, in the event of his or her failure or refusal to comply with the notice, the arrest and detention of the person in a Garda S í och á na station for the period specified in the order, for the purpose of having a DNA sample taken from him or her;

( c ) in a case in which a DNA sample already taken from the person has proved to be insufficient or was inadequately labelled

(i) that that DNA sample has proved to be insufficient or was inadequately labelled, as may be appropriate, and

(ii) that another DNA sample may be taken from the person under subsection (13) or (17) , as the case may be;

( d ) that the DNA sample will be used to generate a DNA profile in respect of the person and that the DNA profile will be transmitted to the member state concerned in accordance with this Chapter;

( e ) that the DNA profile of the person generated from the DNA sample may be given in evidence in any proceedings in the member state concerned;

( f ) that the provisions of sections 10(1), 14, 23 and 24, subsections (3) to (7) of section 21 and subsections (3) to (7) of section 22 , of the Act of 2014 insofar as they relate to the taking of a non-intimate sample (within the meaning of that Act) from a person shall apply, with any necessary modifications, to the taking of the DNA sample from the person; and

( g ) that the DNA sample, and the DNA profile of the person generated from the sample, may be destroyed in accordance with section 79 .

(12) Where a DNA sample taken from a person under subsection (3) proves to be insufficient or is inadequately labelled, this section insofar as it relates to the taking of a DNA sample from the person shall apply, with any necessary modifications, to the taking of a second or further sample from the person.

(13) Where

( a ) a person is arrested and detained under subsection (8) , and

( b ) a DNA sample taken from the person during the period of detention proves to be insufficient or is inadequately labelled,

a second DNA sample may be taken from the person in accordance with subsections (9) to (11) while he or she is so detained.

(14) When a DNA sample or, if appropriate, a second DNA sample has been taken from a person who is detained under subsection (8) , the person shall be released from custody forthwith unless his or her detention is authorised apart from this section.

(15) Where

( a ) a DNA sample is taken from a person who is detained under subsection (8) ,

( b ) the person is released from that detention, and

( c ) the DNA sample proves to be insufficient or is inadequately labelled,

a member of the Garda S í och á na not below the rank of superintendent may apply to a judge of the District Court for an order under subsection (16) .

(16) A judge of the District Court may, on an application in that behalf under subsection (15) , make an order

( a ) authorising the Garda S í och á na to send a notice to the person concerned requiring him or her to attend at a named Garda S í och á na station on a day, and at a time of day or between times of day, specified in the notice for the purpose of having a second DNA sample taken from him or her, and

( b ) in the event of his or her failure to comply with the notice, authorising the Garda S í och á na to arrest the person concerned and detain him or her in a Garda S í och á na station for a period not exceeding 4 hours from the time the person concerned is arrested for that purpose,

if the judge is satisfied that

(i) the first DNA sample concerned was taken from the person concerned in accordance with this section,

(ii) the first DNA sample concerned taken from the person concerned has proved to be insufficient or was inadequately labelled, as the case may be, and

(iii) the member state concerned is still seeking the DNA profile of the person concerned pursuant to the request concerned.

(17) If an order is made under subsection (16) for the purpose of having a second DNA sample taken from the person, subsections (6) to (9) shall, with any necessary modifications, apply to the taking of the second DNA sample from him or her.

(18) When a second DNA sample has been taken from a person who is detained pursuant to an order under subsection (16) , the person shall be released from custody forthwith unless his or her detention is authorised apart from this section.

(19) If a second DNA sample is taken from a person under subsection (13) , the references in subsections (15) to (18)

( a ) to a first DNA sample shall be construed as references to a second DNA sample, and

( b ) to a second DNA sample shall be construed as references to a third DNA sample,

taken, or to be taken, from the person.

(20) Subsections (4) , (7) , (8) , (9) , (9A) , (10) , (11) and (11A) to (11Q) of section 79 shall apply in respect of a request to which this section applies.

(21) An application under subsection (4) or (15) shall be made to a judge of the District Court who is assigned to the district court district in which the person whose DNA profile is being sought pursuant to the request concerned resides.

(22) If

( a ) the conduct alleged to constitute the offence concerned would not, if it took place in the State, constitute a relevant offence, or

( b ) the request is for the DNA profile of a person who is not suspected of having committed the offence concerned in the member state concerned,

then, section 79 and not this section shall apply to the request. ]

Annotations:

Amendments:

F68

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 133, S.I. No. 508 of 2015.

Editorial Notes:

E20

The section heading is taken from the amending section in the absence of one included in the amendment.

79B
79B
79B

F69 [ Application for court order authorising taking of identification evidence from protected person or child under Act of 2008

79B . (1) If

( a ) a member of the Garda S í och á na is unable, having made reasonable efforts to do so, to contact a parent or guardian of a protected person or child, as the case may be, for the purposes of ascertaining whether or not he or she consents to the taking of the identification evidence concerned from the person or child, as the case may be, under section 79 ,

( b ) subject to subsection (11J) of section 79 , the circumstances referred to in subsection (11I) of that section exist in relation to a parent or guardian of a protected person or child, as the case may be, or

( c ) a protected person or child, as the case may be, does not have, or a member of the Garda S í och á na not below the rank of inspector cannot, having made reasonable efforts to do so, ascertain within a reasonable period whether the person or child, as the case may be, has, a living parent or guardian from whom consent to the taking of the identification evidence concerned from the person or child, as the case may be, may be sought under section 79 ,

a member of the Garda S í och á na not below the rank of inspector may apply to a judge of the District Court for an order authorising the taking of the identification evidence concerned from the protected person or child, as the case may be.

(2) A member of the Garda S í och á na who intends to make an application under subsection (1) shall inform the protected person or child, as the case may be, concerned of that intention.

(3) A judge of the District Court may order

( a ) that an application under subsection (1) shall be heard otherwise than in public, or

( b ) that a parent or guardian of the protected person or child, as the case may be, concerned to whom section 79(11I) applies shall be excluded from the Court during the hearing of the application,

or both if

(i) on an application in that behalf by a member of the Garda S í och á na not below the rank of inspector, the judge is satisfied that it is desirable to do so in order to avoid a risk of prejudice to the criminal proceedings, or the criminal investigation, for the offence concerned in the designated state concerned in connection with which the identification evidence concerned has been sought pursuant to the request, or

(ii) the judge considers that it is otherwise desirable in the interests of justice to do so.

(4) A judge of the District Court shall, for the purposes of determining an application under subsection (1)

( a ) be satisfied that the request for the identification evidence concerned complies with section 79(1) , and

( b ) have regard to

(i) the nature and seriousness of the offence concerned in the designated state concerned,

(ii) in so far as they can be ascertained, the wishes of the protected person or child, as the case may be, concerned regarding whether the identification evidence concerned should be taken from him or her, and

(iii) whether it would be in the interests of justice in all the circumstances of the case, having due regard to the best interests of the protected person or child, as the case may be, concerned, to make an order authorising the taking of the identification evidence concerned from the protected person or child, as the case may be, concerned,

before making an order under this section.

(5) If, on an application under subsection (1) , a parent or guardian of the protected person or child, as the case may be, concerned applies to be heard by the judge of the District Court, an order shall not be made under this section unless a reasonable opportunity has been given to the parent or guardian, as the case may be, of that person or child, as the case may be, to be heard.

(6) A judge of the District Court may, if he or she considers it appropriate to do so, make an order authorising the taking of the identification evidence concerned from the protected person or child, as the case may be, concerned in accordance with section 79 .

(7) An application under subsection (1) shall be made to a judge of the District Court who is assigned to the district court district in which the protected person or child concerned resides. ]

Annotations:

Amendments:

F69

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 134, S.I. No. 508 of 2015.

Editorial Notes:

E21

The section heading is taken from the amending section in the absence of one included in the amendment.

79C
79C
79C.
79C.

F70 [ Recording of supply and receipt of data for requests pursuant to Article 7 of 2008 Council Decision or that Article as applied by 2009 Agreement with Iceland and Norway

79C. (1) The Central Authority shall record, in accordance with subsection (2) , the supply and receipt of data

( a ) in the case of requests under section 77 , and

( b ) in the case of requests referred to in section 78 ,

that are made pursuant to Article 7 of the 2008 Council Decision or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway.

(2) The recording of the supply and receipt of data under subsection (1) shall be in a permanent legible form or be capable of being converted into a permanent legible form and shall include the following particulars in relation to the data:

( a ) a description of the data supplied or received;

( b ) the reason for the request concerned;

( c ) the date the data were supplied or received;

( d ) the name or reference code of the Central Authority and the name or reference code of the appropriate authority within the meaning of section 77 concerned or of the authority which supplied or received the data, as the case may be.

(3) Records created under this section may be used only for the purposes of monitoring data protection and ensuring data security.

(4) The Central Authority shall

( a ) retain the records created under this section for a period of 2 years from the time of their creation, and

( b ) immediately after that period, destroy those records.

(5) Whenever requested to do so by the Data Protection Commissioner, the Central Authority shall furnish the records created under this section to the Data Protection Commissioner as soon as practicable, but in any event not later than 4 weeks, after the receipt of a request to do so.

(6) The Central Authority shall

( a ) using the records created under this section, carry out random checks on the lawfulness of the supply and receipt of data,

( b ) retain the results of those random checks for a period of 18 months from the time that they were carried out for the purposes of inspection by the Data Protection Commissioner, and

( c ) immediately after that period, destroy those results.

(7) A data controller F71 [ or, as the case may be, controller ] who supplies or receives data

( a ) in the case of requests under section 77 , or

( b ) in the case of requests referred to in section 78 ,

that are made pursuant to Article 7 of the 2008 Council Decision, or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway, shall furnish such of the particulars specified in subsection (2) in relation to those data as the data controller F71 [ or, as the case may be, controller ] has, as soon as reasonably practicable, to the Central Authority for the purposes of enabling the Central Authority to comply with this section.

(8) In this section reference code , in relation to the Central Authority or other authority, means the reference code that is assigned to the Central Authority or that other authority, as the case may be, for the purposes of the 2008 Council Decision or the 2009 Agreement with Iceland and Norway. ]

Annotations:

Amendments:

F70

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 135, S.I. No. 508 of 2015.

F71

Inserted (25.05.2018) by Data Protection Act 2018 (7/2018), s. 208(b), S.I. No. 174 of 2018.

Editorial Notes:

E22

The section heading is taken from the amending section in the absence of one included in the amendment.

PART 6

Other Forms of Assistance

Chapter 1

Service of documents

80.

Documents for service outside State.

80.— (1) A document may be issued by a court in the State for the purposes of or in connection with criminal proceedings notwithstanding that the person on whom it is to be served is in another state.

(2) Where the document is not in the official language or one of the official languages of that state, the person at whose request it was issued shall provide the court with a translation of the document, or the material parts of it, into that language or one of those languages, unless subsection (3) applies.

(3) Where such a person believes that the person on whom it is to be served does not understand Irish, English or another language which is the official language or one of the official languages of that state, he or she shall—

( a) inform the court of that belief, and

( b) provide it with a translation of the document, or of the material parts of it, into a language that he or she believes that the person understands.

(4) The document—

( a) if it requires the recipient to appear in proceedings, shall not refer to a penalty for non-appearance, and

( b) shall be accompanied by—

(i) a notice stating that—

(I) no measure of restraint or punishment may be enforced directly by the court in the territory of the other state, and

(II) the person to be served may obtain information regarding his or her rights or obligations concerning the document from the court or a specified person or authority,

(ii) a notice giving any other information required to be given by rules of court, and

(iii) where necessary, a translation of the document, or of the material parts of it, into an appropriate language.

(5) Subject to subsection (6), non-compliance by a person with a requirement specified in the document is not contempt of court or a ground for issuing a warrant to compel the person to attend the proceedings concerned.

(6) Subsection (5) does not apply if the document is subsequently served on the person in the State.

(7) Subject to subsection (9), a person who is in the State in compliance with a requirement in the document to appear as a defendant in criminal proceedings may not be proceeded against, sentenced, detained or otherwise restricted in his or her personal freedom in respect of any offence committed before arriving in the State other than an offence or offences specified in the document.

(8) Subject to subsection (9), a person who is in the State in compliance with a requirement in the document to appear as a witness in criminal proceedings may not be proceeded against, sentenced, detained or otherwise restricted in his or her personal freedom in respect of any offence committed before arriving in the State.

(9) The immunity provided for in subsections (7) and (8) ceases when—

( a) a period of 15 days has elapsed from the date when the person’s presence in the State is no longer required by the court concerned and the person, having had an opportunity to leave the State during that period, has not done so, or

( b) the person, having left the State during that period, returns to it.

81.

Mode of service.

81.— (1) A document referred to in section 80 may be served in a designated state by post.

(2) Subject to subsection (3), it may be transmitted to a designated state with a request for service otherwise than by post in accordance with the relevant international instrument.

(3) Where the person to be served is in a member state, service otherwise than by post may be requested only if—

( a) the address of the person is unknown or uncertain,

( b) it has not been possible to serve the document by post, or

( c) the person at whose request the document was issued has good reason for believing that service by post would not be effective or is inappropriate.

(4) Such a document may be served in a state other than a designated state in accordance with arrangements made by the Minister.

82.

Service of documents in State.

82.— (1) This section applies to a request for service on a person in the State of—

( a) a document requiring the person to appear as a defendant or attend as a witness in criminal proceedings in a designated state, and

( b) any other document issued by a court or authority (including a prosecuting authority) in that state in criminal proceedings, including a document relating to the enforcement of a sentence or a preventive measure, the imposition of a fine or the payment of costs of proceedings.

(2) F72 [ ]

(3) Where the request is for personal service, the document, if not in Irish or English, shall be accompanied—

( a) by a translation of the document, or of the material parts of it, into either of those languages, and

( b) if it is known that the person understands only another language or languages and the document is not in that language or one of those languages, by such a translation into that other language or one of those other languages.

(4) Where the request is for personal service, the Minister shall, subject to subsection (5), direct the Commissioner of the Garda Síochána to cause the document to be served personally on the person concerned.

(5) Subsection (4) does not apply to a request for personal service from a member state unless—

( a) the address of the person concerned is unknown or uncertain,

( b) under the law of the member state proof of service on the person is required, other than proof that can be obtained by post,

( c) it has not been possible to serve the document by post, or

( d) the applicant for the issue of the document or the issuing authority has good reason for believing that service by post would not be effective or is inappropriate.

(6) The Commissioner shall—

( a) cause the document, together with the notice referred to in subsection (11), to be served by a member of the Garda Síochána in accordance with the request and send proof of the service to the Minister for transmission to the requesting authority concerned, or

( b) if it is not possible to effect service, cause the Minister to be notified accordingly, stating the reason for the non-service.

(7) A person served under this section with a document is not under any obligation under the law of the State to comply with any requirement in it.

(8) A document requiring a person to appear as a defendant in criminal proceedings in a designated state may not be served under this section unless an assurance is given by the requesting authority concerned that, if the person so appears, he or she will not, subject to subsection (10), be proceeded against, sentenced, detained or otherwise restricted in his or her personal freedom in that state in respect of any conduct taking place before his or her departure from the State, other than conduct constituting the offence or offences specified in the document.

(9) A document requiring a person to attend as a witness in criminal proceedings in a designated state may not be served under this section unless an assurance is given by the requesting authority concerned that, if the person so attends, he or she will not, subject to subsection (10), be proceeded against, sentenced, detained or otherwise restricted in his or her personal freedom in that state in respect of any offence committed before his or her departure from the State.

(10) The immunity provided for in subsections (8) and (9) ceases when—

( a) a period of at least 15 days has elapsed from the date when the person’s presence in the designated state is no longer required by the judicial authorities concerned and the person, having had an opportunity to leave the designated state during that period, has not done so, or

( b) the person, having left the state during that period, returns to it.

(11) The notice to accompany a document served under this section shall—

( a) state the content of subsection (7), (8) or (9), as appropriate, and subsection (10),

( b) indicate that the person on whom the document is served may wish to seek advice as to the possible consequences of failure to comply with it under the law of the state where it was issued, and

( c) indicate that under that law the person may not, as a defendant or witness, have the same rights and privileges as he or she would have in that capacity in criminal proceedings in the State.

(12) If there is reason to believe that the person understands only a language or languages other than Irish or English, the notice shall be translated into that other language or one of those other languages.

Annotations:

Amendments:

F72

Repealed (1.02.2016) by Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (40/2016), s. 36(a), S.I. No. 11 of 2016.

Chapter 2

Examining objects and sites

83.

Examining objects and sites.

83.— (1) A request for the examination of an object or site in a designated state for the purposes of a criminal investigation or criminal proceedings may be sent by the Director of Public Prosecutions either to the Central Authority for transmission to the appropriate authority in the designated state or directly to that authority.

(2) A request from a designated state for the examination of an object or site for such purposes may be sent by the Minister to the Commissioner of the Garda Síochána to arrange for the request to be complied with.

(3) A request under this section shall include a description of the object or site that is sufficient to enable it to be clearly identified.

(4) Section 74 shall apply and have effect in relation to such a request from a designated state with the modification that, where necessary, a warrant may be issued under subsection (8) of that section requiring the owner or occupier of the object or site to allow access to it by a member of the Garda Síochána and such other persons as may accompany the member for the purposes of the examination and with any other necessary modifications.

(5) Subsection (4) is without prejudice to section 97.

Chapter 3

Restitution

84.

Restitution of stolen property from designated state.

84.— (1) An order under paragraph (i) of section 56 (orders for restitution) of the Criminal Justice (Theft and Fraud Offences) Act 2001 may be made by the court by or before which a person is convicted in relation to property in a designated state.

(2) The return of property to its owner in accordance with such an order does not prejudice the rights of any bona fide third parties in relation to it.

(3) The Central Authority, on the application of the person entitled under the order to recover the property, shall send a copy of the order to the person or body in the designated state appearing to it to have the function of dealing with a request for the restitution of the property concerned.

(4) The request shall be accompanied by a document provided by the applicant containing—

( a) a statement that—

(i) a specified person obtained the property concerned by committing an offence under the law of the State, and

(ii) the return of the property to its owner does not prejudice the rights of any bona fide third parties in relation to it,

and

( b) the following information:

(i) a description of the property;

(ii) its location;

(iii) the name and address of its owner; and

(iv) any other information likely to facilitate compliance with the request.

85.

Request to State for restitution of stolen property.

85.— (1) This section applies to a request for property obtained by criminal means to be placed at the disposal of the requesting authority with a view to the return of the property to its owner.

(2) The request shall be in writing and shall include or be accompanied by—

( a) a statement that—

(i) a specified person has obtained the property by committing an offence under the law of the requesting state, and

(ii) the return of the property to its owner does not prejudice the rights of any bona fide third parties in relation to it,

and

( b) the following information:

(i) a description of the property;

(ii) its location;

(iii) the name and address of its owner; and

(iv) any other information likely to facilitate compliance with the request.

86.

Action on request.

86.— (1) On receipt of the request the Minister may, if of opinion that the request complies with section 85 , cause an application to be made to the District Court for an order under section 87 in relation to the property.

(2) The Court shall provide for notice of the application to be given to any person who appears to be or is affected by such an order unless the Court is satisfied that it is not reasonably possible to ascertain the person’s whereabouts.

87.

Order for restitution.

87.— (1) On application by or on behalf of the Minister, the District Court may, if satisfied—

( a) that sections 85 and 86(2) have been complied with, and

( b) that the property concerned is in the possession or control of a specified person,

order that person to deliver the property to the member in charge of the Garda Síochána station named in the application.

(2) The Central Authority shall arrange for the delivery of the property to the requesting authority with a view to the return of the property to its owners.

(3) An order may also be made by the District Court under this section for the delivery of property which is in the custody of the Garda Síochána.

(4) An order under this section may not be made—

( a) where the property is required as evidence in civil or criminal proceedings, or

( b) unless an opportunity has been given to any person claiming to own, or have an interest in, the property to show cause why the order should not be made.

(5) A person who does not comply with an order under this section is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

(6) The jurisdiction of the District Court under this section may be exercised—

( a) by the judge of that Court assigned to the district court district in which the property is located, or

( b) if the property is located in more than one district court district, by a judge of that Court assigned to any one of those districts.

Chapter 4

Controlled deliveries

88.

Interpretation ( Chapter 4).

88.— (1) In this Chapter—

“competent authority in a designated state”, in relation to a request for a controlled delivery to or from a designated state, means a person or body in that state appearing to the Competent Authority in the State to have the function of receiving or making the request;

“Competent Authority in the State”, in relation to a request for a controlled delivery to or from a designated state, means—

( a) the Commissioner of the Garda Síochána or a member of the Garda Síochána authorised by him or her for the time being to exercise his or her functions under this Chapter, or

( b) if the controlled delivery is concerned with a revenue offence, the Revenue Commissioners or a person authorised by them for the time being to exercise their functions under this Chapter;

“controlled delivery” means a delivery permitted in the State in accordance with this Chapter or in a designated state in accordance with the relevant international instrument for the purposes of an investigation into an offence;

“controlled drug” has the meaning given to it by section 2 of the Misuse of Drugs Act 1977;

“offence” includes an offence which is suspected, with reasonable cause, to have been or to be about to be committed.

(2) Where the competent authority of a designated state requires requests under this Chapter to be received or made by a judicial authority, the requests shall be addressed to or made by the Minister, and for that purpose references in this Chapter to the Competent Authority in the State are to be construed as references to the Minister.

89.

Controlled delivery in designated state.

89.— (1) The Competent Authority in the State may request the competent authority in a designated state to permit—

( a) a controlled delivery to be made in that state, and

( b) specified persons or persons of a specified description, including members of the Garda Síochána and officers of customs and excise, to participate in the operations connected with the delivery.

(2) The request shall include particulars of the offence with which the controlled delivery is concerned.

90.

Controlled delivery in State.

90.— (1) This section applies to a request to the Competent Authority in the State from a competent authority in a designated state to permit—

( a) a controlled delivery to be made in the State, and

( b) specified persons, or persons of a specified description, from the designated state to participate in the operations connected with the controlled delivery.

(2) The request shall include particulars of the offence with which the controlled delivery is concerned.

(3) The Competent Authority in the State may grant the request if satisfied that—

( a) the controlled delivery is being made for the purposes of an investigation into an offence, or

( b) there are reasonable grounds for believing that it is in the public interest, having regard to the benefit likely to accrue to the investigation, to permit the delivery to take place.

(4) The operations related to a controlled delivery shall, if the delivery is concerned with the illegal importation of controlled drugs, be regulated in accordance with—

( a) the Memorandum of Understanding of 12 January 1996 concerning the relationship between the Customs and Excise Service of the Revenue Commissioners and the Garda Síochána with respect to Drugs Law Enforcement and agreed between the Commissioner of the Garda Síochána and the chairman of the Revenue Commissioners, and

( b) the Operational Protocol for co-operation between An Garda Síochána, the Customs and Excise and the Naval Service in relation to Drugs Law Enforcement,

including any modifications or extensions of the Memorandum or Protocol for the time being in force.

(5) If the delivery is concerned with a revenue offence (other than an offence constituted by the illegal importation of controlled drugs), the operations shall be under the direction and control of the officers of customs and excise assigned to the delivery.

(6) If the delivery is concerned with any other offence, the operations shall be under the direction and control of the members of the Garda Síochána so assigned.

(7) A member of the Garda Síochána or officer of customs and excise participating in operations connected with a controlled delivery in the State may, at the request of a person from a designated state so participating, take such action as may be open to the member or officer in furtherance of the operations.

(8) Copies of the Memorandum of Understanding and Operational Protocol have been placed in the Oireachtas Library.

91.

Amendment of Garda Síochána Act 2005.

91.— Section 51 (International Service) of the Garda Síochána Act 2005 is amended—

( a) in subsection (2)(a), by the deletion of “State, or” and the substitution of “State,”, and

( b) by the substitution of the following subsections for subsections (b) and (c):

“( b) as members of a joint investigation team within the meaning of the Criminal Justice (Joint Investigation Teams) Act 2004, as amended by section 96 of the Criminal Justice (Mutual Assistance) Act 2008,

( c) in connection with the making of a controlled delivery outside the State pursuant to a request under section 89 of the said Act of 2008, or

( d) on secondment to an international organisation with the consent of the Minister.”.

92.

Application of Criminal Justice (Joint Investigation Teams) Act 2004 in relation to controlled deliveries.

92.— Sections 11 (Use of Information), 12 (Criminal Liability) and 13 (Civil Liability) of the Criminal Justice (Joint Investigation Teams) Act 2004 apply, with the necessary modifications, in relation to a person participating in operations connected with a controlled delivery as they apply in relation to a member or seconded member of a joint investigation team within the meaning of that Act.

PART 7

Mutual Assistance in Criminal Matters Between the State and the United States of America

93.

Definitions ( Part 7).

93.— In this Part—

“Article” means an Article of the Ireland-US Treaty;

“Explanatory Note” means the Explanatory Note which—

( a) is annexed to the Council Decision of 6 June 2003 concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual assistance in criminal matters, and

( b) records an understanding between the European Union and the United States of America on the EU - US Agreement;

“Instrument” means the Instrument contemplated by Article 3(2) of the EU - US Agreement as to the application of the US - Ireland Treaty and done at Dublin on 14 July 2005;

“EU - US Agreement” means the Agreement on Mutual Legal Assistance between the European Union and the United States of America, done at Washington D.C. on 25 June 2003;

“Ireland - US Treaty” means the Treaty between the Government of Ireland and the Government of the United States of America on Mutual Assistance in Criminal Matters, done at Washington D.C. on 18 January 2001, as applied by the Instrument.

94.

Application in State of Ireland - US Treaty.

94.— (1) The Ireland - US Treaty has the force of law in its application in relation to the State.

(2) Judicial notice shall be taken of the Treaty.

(3) For the purpose of giving full effect to the Treaty, the relevant provisions of this Act relating to requests for mutual legal assistance between the State and member states, including those relating to applications to courts or judges—

( a) to make orders to give effect to or enforce compliance with requests for such assistance, and

( b) to make, vary or discharge those orders,

have also effect, subject to the Treaty, in relation to requests for mutual legal assistance between the State and the United States of America, where necessary for that purpose and with the necessary modifications; in particular, for that purpose the reference in Article 16 bis 4 to money laundering and terrorist activity include, respectively, an offence under F73 [ Part 2 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 ], and an offence under section 6 of the Criminal Justice (Terrorist Offences) Act 2005.

(4) Section 7 (operation of joint investigation teams) of the Criminal Justice (Joint Investigation Teams) Act 2004 applies in relation to a joint investigation team established under Article 16 ter and operating in the State as if it were a joint investigation team established under that Act.

F74 [ (5) Article 7, in its application in relation to the use of personal data contained in evidence or information obtained under the Treaty by a person in the State, is without prejudice to the application of

(a) subject to section 8 of the Act of 2018, section 7 (duty of care owed by data controllers and data processors) of the Act of 1988 in respect of the use of such data (within the meaning of the Act of 1988), and

(b) Part 5 of the Act of 2018, in respect of the use of such data (within the meaning of that Part).

(6) (a) Subject to section 8 of the Act of 2018, the Data Protection Acts 1988 and 2003 apply in relation to personal data referred to in subsection (5)(a) , in respects other than those related to their use.

(b) Part 5 of the Act of 2018 applies in relation to personal data referred to in subsection (5)(b) , in respects other than those related to their use. ]

(7) A court may consider—

( a) the Explanatory Note when interpreting any provision of the EU - US Agreement, and

( b) the Note and Agreement when interpreting any provision of the Treaty,

and give them such weight as is appropriate in the circumstances.