Criminal Justice (Miscellaneous Provisions) Act 2009
New sections 45 to 45C of Act of 2003.
20.— The Act of 2003 is hereby amended—
(a) by the substitution for section 45 of the following section:
“Persons convicted in absentia.
45.— A person shall not be surrendered under this Act if—
(a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant, and
(b) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence, or
(ii) he or she was not permitted to attend the trial in respect of the offence concerned,
unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered—
(I) be retried for that offence or be given the opportunity of a retrial in respect of that offence,
(II) be notified of the time when, and place at which any retrial in respect of the offence concerned will take place, and
(III) be permitted to be present when any such retrial takes place.”,
(b) by the insertion of the following new sections after section 45:
45A.— (1) Where a member of the Garda Síochána arrests a person under any power conferred by this Act, the member of the Garda Síochána may, in order to assist in verifying or ascertaining his or her identity for the purpose of proceedings under this Act and for no other purpose—
(a) take, or cause to be taken, his or her fingerprint,
(b) take, or cause to be taken, his or her palm print,
(c) photograph him or her or cause him or her to be photographed.
(2) Where a fingerprint, palm print or photograph taken pursuant to subsection (1) is lost or damaged, or is otherwise unsuitable for use for the purpose referred to in that subsection, it may be taken on a second or any further occasion.
(3) The powers conferred by subsection (1) shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of inspector.
(4) A member of the Garda Síochána may, where a person fails or refuses to allow his or her fingerprint, palm print or photograph to be taken pursuant to subsection (1), use such force as he or she reasonably considers necessary to take the fingerprint, palm print or photograph or to cause the photograph to be taken.
(5) (a) The powers conferred by subsection (4) shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of superintendent.
(b) An authorization pursuant to paragraph (a) may be given orally or in writing and if given orally shall be confirmed in writing as soon as practicable.
(6) Where a member of the Garda Síochána intends to exercise a power conferred by subsection (4), he or she shall inform the person—
(a) of that intention, and
(b) that an authorization to do so has been given pursuant to subsection (5)(a).
(7) Every fingerprint, palm print or photograph taken pursuant to subsection (4) shall be taken in the presence of a member of the Garda Síochána not below the rank of inspector.
(8) The taking of every fingerprint, palm print or photograph pursuant to subsection (4) shall be video-recorded.
(9) Every fingerprint, palm print or photograph of a person taken in pursuance of a power conferred by this section and every copy and record thereof shall be destroyed within the period of 12 months from the date of the taking of the fingerprint, palm print or photograph, as the case may be, or on the conclusion of proceedings under this Act in relation to the person, whichever occurs later.
(10) A person who obstructs a member of the Garda Síochána in exercise of the powers under this section shall be guilty of an offence and shall, on summary conviction, be liable to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months or to both.
(11) Where a fingerprint, palm print or photograph of a person to whom a European arrest warrant relates is transmitted by or on behalf of an issuing judicial authority, such fingerprint, palm print or photograph shall be received in evidence without further proof.
Transfer of persons to state from which surrendered.
45B.— (1) Where a national or resident of another state from which he or she is surrendered—
(a) is surrendered to the State pursuant to a European arrest warrant with a view to being prosecuted in the State, and
(b) whose surrender is subject to the condition that he or she, after being so prosecuted, is returned if he or she so consents to that other state in order to serve any custodial sentence or detention order imposed upon him or her in the State,
the Minister shall, following the final determination of the proceedings and if the person consents, issue a warrant for the transfer of the person from the State to that other state in order to serve there any custodial sentence or detention order so imposed.
(2) A warrant issued under subsection (1) shall authorise—
(a) the taking of the person to a place in any part of the State and his or her delivery at a place of departure from the State into the custody of a person authorized by the other state to receive the person, for conveyance to the other state concerned, and the keeping of the person in custody until the delivery is effected, and
(b) the removal of the person concerned, by the person to whom he or she is delivered, from the State.
(3) Where a warrant has been issued in respect of a person under this section, the person shall be deemed to be in legal custody at any time when he or she is being taken under the warrant to or from any place or being kept in custody under the warrant and, if the person escapes or is unlawfully at large, he or she shall be liable to be retaken in the same manner as any person who escapes from lawful custody.
(4) The Minister may designate any person as a person who is for the time being authorised to take the person concerned to or from any place under the warrant or to keep the person in custody under the warrant.
(5) A person authorized pursuant to subsection (4) to take the person concerned to or from any place or to keep the person in custody shall, while so taking or keeping the person, have all the powers, authority, protection and privileges of a member of the Garda Síochána.
(6) The order by virtue of which a person is required to be detained at the time a warrant is issued in respect of him or her under this section shall continue to have effect after his or her removal from the State so as to apply to him or her if he or she is again in the State at any time when under that order he or she is to be or may be detained.
Technical flaws in applications for surrender.
45C.— (1) Subject to subsection (2), an application for surrender under section 16 shall not be refused on the grounds of—
(a) a defect in substance or in form or an omission of non-substantial detail in the European arrest warrant or any accompanying document grounding the application,
(b) any variance between any such document and the evidence adduced on the part of the applicant at the hearing of the application, or
(c) failure to comply with any provision of this Act where the Court is satisfied that such failure is of a technical nature and does not impinge on the merits of the application.
(2) Subsection (1) shall not apply where the Court is satisfied that an injustice would thereby be caused to the respondent.”.