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.— (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.

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;

F23[(iv) in the case of request from a designated state other than the United Kingdom, 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.— 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.— (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.— 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.— 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.

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.— (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.

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.

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.— (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.— (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.

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.— (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.

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.— 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.— 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.”.

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;

F24["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;]

F25["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—

F26[(a) taken provisionally by a competent judicial authority of -

(i) a designated state in criminal proceedings, or

(ii) the United Kingdom in a criminal investigation,

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—

F27[(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.

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 F28[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.

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.— (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 F29[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.

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.

F30[(3A) An application for the enforcement of an external freezing order from the United Kingdom shall be dealt with —

(a) as soon as possible, and

(b) where the designated state informs the Central Authority that there are legitimate grounds to believe that the property specified in the order will be immediately removed or destroyed, where practicable, within 96 hours of receipt of the order, the statement referred to in section 34(2)(b) and any other information required by Title XI of Part Three of the Trade and Cooperation Agreement.]

(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 F31[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.

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.— (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.— (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 F32[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 F33[any order referred to in subsection (1)] that may be made in the defendant’s case.

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.— (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.— (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.— (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.

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.— 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,

F34[(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.

45.— (1) Subject to the provisions of this section, the High Court, on application by F35[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.

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 F36[a member state or the United Kingdom]), 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.— (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.— (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 F37[this Part].

(3) Notwithstanding subsection (1), where—

(a) a request from a member state concerns an offence to which Article 3(2) of the F37[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.

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.

F38[(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.

F38[(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.

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.

F39[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.]

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.]

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) F42[where the designated state concerned is a state other than the United Kingdom, 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) F42[where the designated state concerned is a state other than the United Kingdom, 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) F42[Where the designated state concerned is a state other than the United Kingdom, 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.]

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.]

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.]

F45[(4) Where the external confiscation order was made in the United Kingdom, the substantive grounds for making the external confiscation order may be reviewed only by a judicial authority in that state.]

F46[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.]

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.]

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.]

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 F49[with a confiscation co-operation order in respect of an external confiscation order transmitted by or on behalf of a court in a designated state other than the United Kingdom] if the request for the enforcement of the external confiscation order so specifies and the relevant international instrument so provides.

F50[(5A) A defendant shall not be imprisoned for non-compliance with a confiscation co-operation order in respect of an external confiscation order transmitted by or on behalf of a court in the United Kingdom unless the competent authority in United Kingdom consents to such imprisonment.]

(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

53.— (1) Where—

(a) F51[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.

F52[(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 F53[subsections (8) and (9)], 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 F54[that is a member state or the United Kingdom] 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.]

F55[(9) Where property recovered by the execution of a confiscation co-operation order transmitted by or on behalf of a court in a designated state, other than a member state or the United Kingdom, is a sum of money or the proceeds of a sale under subsection (7)(b), the Court, on application by the Central Authority and in accordance with the relevant international instrument, may—

(a) order the money or the proceeds of sale to be transferred to the designated state, or 

(b) order part of the money or the proceeds of sale to be transferred to the designated state and the remaining balance shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.]

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.— (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.— (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.

F56[(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.]

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 F57[an external confiscation order or] a confiscation co-operation order.

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.]

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.— (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.— (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.

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.

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.— (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.— (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.

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 F69[or under section 22 (transfer warrant for removal of sentenced person from State) of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023].

(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.— (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.

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 F70[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 F70[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 F70[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.

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 F71[practicable] for the witness to give evidence in person;

(e) the likely date of the hearing.

69.— The Minister, if of opinion—

(a) that it is not desirable or F72[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.

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.

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.— (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.

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.— (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.

F73[(12A) Where the evidence sought is already in the possession of the Garda Síochána, or where material referred to in subsection (9) is obtained on foot of a warrant under this section, the Commissioner of the Garda Síochána 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.]

F73[(12B) Any evidential material taken away by a member of the Garda Síochána 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.

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).

F74[(8A) Where the material sought is already in the custody of the Garda Síochána or has been obtained on foot of an order under subsection (10), the Commissioner of the Garda Síochána 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.

75A.— Where a request under section 74 or 75 is in relation to a revenue offence, the powers of a member of the Garda Síochána 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 Síochána" 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 Síochána, 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 Síochána" 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 Síochána 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 Síochána" shall be read as including a reference to its being "in the custody of the Revenue Commissioners".]

76.—F76[(1)] In this Chapter—

F77["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;

F77["child" means a person who has not attained the age of 18 years;

F78["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;

F77["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;

F77["guardian", in relation to a child (including a protected person who is a child), has the meaning it has in the Act of 2014;]

F79["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;]

F77["inadequately labelled" and "insufficient", in relation to a DNA sample, have the meanings they have in the Act of 2014;]

F77["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.

F77["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.]

F80[(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.]

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, F81[…]

F82[(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, F83[or, in the case of a request pursuant to Article 532 of the Trade and Cooperation Agreement,] 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 Síochána 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.

78. —F84[(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, F85[…]

F86[(b) a brief description of the conduct constituting the offence,]

F87[(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, F88[…]

(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 Síochána—

(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 F89[that member state, and]

F90[(f) in the case of a request pursuant to Article 532 of the Trade and Cooperation Agreement 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 Síochána—

(i) an investigation warrant in respect of the person, or

(ii) a statement issued by the competent authority in the United Kingdom in connection with a criminal investigation in the United Kingdom confirming that the requirements for the taking of a DNA sample from the person under the law of the United Kingdom would be complied with if the person were in the United Kingdom.]

(2) In this section—

F89["competent authority"—

(a) 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, and

(b) in relation to the United Kingdom, means the authority in the United Kingdom that is competent to issue an investigation warrant or statement for the purposes of Article 532 of the Trade and Cooperation Agreement;]

"investigation warrant" means a warrant or order issued by the competent authority in a F89[member state or the United Kingdom] 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 F89[member state or the United Kingdom].]

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,

F91[(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 F91[the identification evidence requested is not in the possession of the Garda Síochána 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, F92[…]

F91[(d) that, if he or she does consent to provide it, it may be given in evidence in any proceedings in that state, and]

F93[(e) that the evidence may be destroyed in accordance with this section.]

(3) F91[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 F93[,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) F91[taken under subsection (3) or section 79A], together with a copy of the record made under subsection (8),

for transmission to the requesting authority.

F93[(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).]

F91[(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).]

F93[(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 Síochána shall include a reference to identification evidence in the possession of Forensic Science Ireland of the Department of Justice and Equality.]

F91[(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.]

79A.— (1) If the request for obtaining identification evidence for use in a F95[member state or the United Kingdom] under section 78—

F95[(a) is pursuant to—

(i) 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, or

(ii) Article 532 of the Trade and Cooperation Agreement, 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 Síochána.

(2) The Commissioner shall instruct a member of the Garda Síochána 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 F96[or the United Kingdom] for the purposes of criminal proceedings, or a criminal investigation, in that member state F96[or the United Kingdom, as the case may be],

(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 F96[or the United Kingdom, as the case may be,] 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 F96[or the United Kingdom, as the case may be], 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 Síochána 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 Síochána not below the rank of superintendent, make an order—

(a) authorising the Garda Síochána to send a notice to the person concerned requiring him or her to attend at a named Garda Síochána 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 Síochána to arrest the person concerned and detain him or her in a Garda Síochána 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 Síochána 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 Síochána 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 Síochána may arrest that person and detain him or her in a Garda Síochána 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 Síochána 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 Síochána station,

for the purpose of having a DNA sample taken from him or her, a member of the Garda Síochána 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 Síochána 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 F96[or the United Kingdom] for the purposes of criminal proceedings, or a criminal investigation, in that member state F96[or the United Kingdom, as the case may be];

(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 Síochána 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 Síochána 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 F96[or the United Kingdom, as the case may be,] 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 F96[or the United Kingdom, as the case may be];

(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 Síochána 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 Síochána to send a notice to the person concerned requiring him or her to attend at a named Garda Síochána 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 Síochána to arrest the person concerned and detain him or her in a Garda Síochána 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 F96[or the United Kingdom, as the case may be,] 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 F96[or the United Kingdom, as the case may be],

then, section 79 and not this section shall apply to the request.]

79B.— (1) If—

(a) a member of the Garda Síochána 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 Síochána 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 Síochána 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 Síochána 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 Síochána 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—