Number 20 of 2004

CRIMINAL JUSTICE (JOINT INVESTIGATION TEAMS) ACT 2004

ARRANGEMENT OF SECTIONS

SCHEDULE

Framework Decision of 13 June 2002 of the Council of the European Union on Joint Investigation Teams

PART 1

PART 2

Number 20 of 2004

CRIMINAL JUSTICE (JOINT INVESTIGATION TEAMS) ACT 2004

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1. —(1) In this Act, unless the context otherwise requires—

“Act of 1994” means Criminal Justice Act 1994;

“another Member State” means a Member State other than the State;

“the Commissioner” means the Commissioner of the Garda Síochána;

“competent authority” shall be construed in accordance with section 2 ;

“the Council Framework Decision” means the Framework Decision of 13 June 2002 of the Council of the European Union on joint investigation teams¹ , the text of which is for convenience of reference set out—

(a) in Part 1 of the Schedule to this Act, in the case of the Irish language text, and

(b) in Part 2 of that Schedule, in the case of the English language text;

“European Communities” has the meaning it has in the European Communities Act 1972 ;

“joint investigation team” means a joint investigation team established under section 3 or 4;

“member”, in relation to a joint investigation team or a part of such a team, means a person who is assigned or appointed under section 6 to be a member of the team;

“Member State” means Member State of the European Communities;

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

“participants” has the meaning assigned to it by section 9 ;

“seconded member”, in relation to a joint investigation team or a part of such a team, means—

(a) if and when the team or the part is operating in the State, a member of the team or the part aforesaid appointed by the competent authority of another Member State that established the team, and

(b) if and when the team or the part is operating in another Member State, a member of the team or the part aforesaid assigned or appointed under section 6 ;

“team leader”, in relation to a joint investigation team or a part of such a team, means—

(a) if and when the team or the part is operating in the State, the member of the team or the part aforesaid designated by the Commissioner under section 7 (1)(d) to be the team leader, and

(b) if and when the team or the part is operating in another Member State, the member of the team or the part aforesaid designated by the competent authority of that Member State to be the team leader.

(2) In this Act—

(a) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended, and

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any other enactment including this Act.

2. —(1) Subject to subsection (2), the competent authority of the State for the purposes of the Council Framework Decision and this Act (in this Act referred to as “the Competent Authority”) is the Commissioner.

(2) Where the competent authority of another Member State requires a request to it under section 3 (1) to be made, or a request from it under section 4 (1) to be received, by a judicial authority, the Minister shall be the Competent Authority in relation to the request.

(3) In this Act “competent authority”, in relation to another Member State, means the authority designated by that Member State to be the competent authority of that Member State for the purposes of the Council Framework Decision.

3. —(1) Where the Competent Authority is satisfied that—

(a) either—

(i) an offence has been committed, or there are reasonable grounds for suspecting that an offence has been committed, in the State and the investigation of the offence or suspected offence has links with another Member State or States, or

(ii) conduct which would constitute an offence if it occurred in the State has occurred, or there are reasonable grounds for suspecting that such conduct has occurred, partly in the State and partly in another Member State or States,

and

(b) there are reasonable grounds for believing that it is in the public interest, having regard to the benefit likely to accrue to the investigation of the offence or suspected offence concerned or into the conduct concerned, to establish a joint investigation team with that other Member State or those other Member States because—

(i) part of the investigation is being, or it is anticipated that it will be, conducted in that other Member State or those other Member States, or

(ii) the investigation requires coordinated and concerted action by the Member States (including the State) concerned,

the Competent Authority may request the competent authority or authorities of that other Member State or those other Member States to establish a joint investigation team to investigate the offence, suspected offence or conduct concerned.

(2) A request under subsection (1) shall specify the following:

(a) the competent authority making the request,

(b) the purpose of the request,

(c) the conduct to be investigated,

(d) the identity and nationality (if known) of the person or persons whose conduct is to be investigated,

(e) proposals in respect of the membership of a joint investigation team, and

(f) the period for which a joint investigation team is required.

(3) The Competent Authority shall furnish to the other competent authority or authorities concerned such other information (if any) as is specified to the Competent Authority and is reasonably required by that authority or those authorities to decide whether or not to agree to establish a joint investigation team.

(4) Where any of the competent authorities concerned accedes to a request under subsection (1), the Competent Authority may, subject to this Act, agree with that authority and any other competent authority concerned to establish a joint investigation team to investigate the offence, suspected offence or conduct concerned.

(5) The Competent Authority and the competent authority or authorities concerned may, pursuant to an agreement under subsection (4), establish a joint investigation team.

4. —(1) Where the Competent Authority receives a request specifying the matters mentioned in section 3 (2) from one or more competent authorities of other Member States to establish a joint investigation team, the Competent Authority shall consider the request.

(2) The Competent Authority may seek from the competent authority or authorities concerned such other information (if any) as is specified to that authority or those authorities and is reasonably required by the Competent Authority to decide whether or not to agree to establish a joint investigation team.

(3) The Competent Authority may, subject to this Act, agree with the competent authority or authorities concerned to establish a joint investigation team to investigate certain conduct if the Competent Authority is satisfied that—

(a) either—

(i) the conduct which would constitute an offence if it occurred in the State has occurred, or there are reasonable grounds for suspecting that such conduct has occurred, partly in the State and partly in another Member State or States, or

(ii) the conduct which would constitute an offence if it occurred in the State has occurred, or there are reasonable grounds for suspecting that such conduct has occurred, in another Member State or States and the investigation of it has links with the State,

and

(b) there are reasonable grounds for believing that it is in the public interest, having regard to the benefit likely to accrue to the investigation into the conduct concerned, to agree to the establishment of a joint investigation team with the other Member State or States concerned because—

(i) part of the investigation is being, or it is anticipated that it will be, conducted in the State, or

(ii) the investigation requires coordinated and concerted action by the Member States (including the State) concerned.

(4) The Competent Authority and the competent authority or authorities concerned may, pursuant to an agreement under subsection (3), establish a joint investigation team.

5. —(1) A joint investigation team shall be established for specific purposes and a limited period which may be extended, if the circumstances so require, for such period or periods as may be agreed by the Competent Authority and the other competent authority or authorities concerned.

(2) Subject to subsection (1), a joint investigation team may operate in the State or in the other Member State or States concerned for so long as it is necessary to do so for the purpose of conducting the investigation concerned, and parts of it may operate in more than one of those Member States at the same time.

(3) Subject to this Act, the Competent Authority may, at any time after a joint investigation team has been established, agree with the competent authority or authorities concerned to amend the agreement establishing the team.

(4) The State may join a joint investigation team that has been established by Member States other than the State on such terms and conditions as the Competent Authority may, subject to this Act, agree with the competent authorities of those Member States if the Competent Authority is satisfied that—

(a) the conduct being investigated by the team is either—

(i) conduct which would constitute an offence if it occurred in the State and it has occurred, or there are reasonable grounds for suspecting that such conduct has occurred, partly in the State and partly in another Member State or States, or

(ii) conduct which would constitute an offence if it occurred in the State and it has occurred, or there are reasonable grounds for suspecting that such conduct has occurred, in another Member State or States and the investigation of it has links with the State,

and

(b) there are reasonable grounds for believing that it is in the public interest, having regard to the benefit likely to accrue to the investigation into the conduct concerned, to agree to the State joining the team because—

(i) part of the investigation is being, or it is anticipated that it will be, conducted in the State, or

(ii) the investigation requires coordinated and concerted action by the Member States (including the State) concerned.

(5) Where a joint investigation team has been established by more than one Member State including the State, another Member State may join the team on such terms and conditions as its competent authority may agree with the Competent Authority and the competent authority or authorities of the other Member State or States concerned.

(6) In relation to an agreement referred to in subsection (4) or (5)—

(a) a reference in this Act to the Member States that established a joint investigation team shall be construed as including a reference to the State or, as the case may be, to the Member State that joined the team under subsection (5), and

(b) a reference in this Act to the competent authority or authorities of the Member State or States that established a joint investigation team shall be construed as including a reference to the Competent Authority or, as the case may be, the competent authority of the Member State that joined the team under subsection (5),

(7) Notwithstanding subsection (1), the Competent Authority may agree with the other competent authority or authorities concerned to terminate a joint investigation team when—

(a) the purposes for which the team was established have been achieved, or

(b) no further benefit is likely to accrue from the continued operation of the team.

6. —(1) The Commissioner may assign such and so many members of the Garda Síochána as he or she considers appropriate to be members of a joint investigation team.

(2) The Minister may, after consultation with the Commissioner, the Minister for Finance and such other Ministers of the Government (if any) as the Minister considers appropriate and, in relation to officers of the Revenue Commissioners, with the Revenue Commissioners, appoint any of the following to be members of a joint investigation team:

(a) one or more officers of customs and excise,

(b) one or more other officers of the Revenue Commissioners or officers of the Minister or of any other Minister of the Government, or

(c) one or more other persons who, in the opinion of the Minister, have experience or expertise relevant to the investigation concerned.

(3) Members of a joint investigation team assigned under subsection (1), or appointed under paragraph (a) or (b) of subsection (2), shall—

(a) subject to subsection (4), be paid such remuneration, and allowances for expenses (if any) incurred by them, as they would have been paid if they continued to be members of the Garda Síochána, officers of customs and excise or other officers of the Revenue Commissioners, officers of the Minister or of any other Minister of the Government, as the case may be, and such remuneration and allowances for expenses (if any) shall continue to be paid to them in the same manner as if they had not been so assigned or appointed, and

(b) subject to this Act, continue to be subject to the same terms and conditions of employment as they were subject to immediately before they were so assigned or appointed.

(4) Members of a joint investigation team assigned under subsection (1), or appointed under paragraph (a) or (b) of subsection (2), who were paid certain allowances in respect of particular duties performed by them as members of the Garda Síochána, officers of customs and excise or other officers of the Revenue Commissioners, officers of the Minister or of any other Minister of the Government, as the case may be, before they were so assigned or appointed shall be paid those allowances during their membership of the team only if those duties are performed by them as members of the team.

(5) Members of a joint investigation team appointed under subsection (2)(c) shall—

(a) be paid such remuneration (if any), and allowances for expenses (if any) incurred by them, as the Minister may, with the consent of the Minister for Finance, determine, and

(b) subject to this Act, be subject to such other terms and conditions as the Minister may determine.

(6) (a) The Commissioner may remove a member of a joint investigation team assigned under subsection (1) from such membership.

(b) The Minister may, if so requested by the Commissioner, remove a member of a joint investigation team appointed under subsection (2) from such membership.

(7) Members of the Garda Síochána or officers of customs and excise who are members of a joint investigation team shall continue to be vested with and may exercise or perform the powers and duties of members of the Garda Síochána or officers of customs and excise, as the case may be—

(a) for the purposes of their functions as members, and, if it is so provided in the agreement to establish the team, for the purposes of their functions as seconded members, of the team, and

(b) notwithstanding their membership of the team, for purposes other than the purposes of this Act.

7. —(1) While a joint investigation team or a part of such a team is operating in the State—

(a) it or the part aforesaid shall perform its functions in accordance with the law of the State,

(b) it or the part aforesaid shall operate under the control and general superintendence of the Commissioner,

(c) the Commissioner shall make the necessary organisational arrangements for it or the part aforesaid to operate in the State, and

(d) the Commissioner shall designate a member of it or the part aforesaid to be the team leader.

(2) (a) The team leader of a joint investigation team or a part of such a team operating in the State shall, subject to this Act and the agreement to establish the team, manage its operations or the operations of the part aforesaid, as the case may be.

(b) The members (other than the team leader), and seconded members, of a joint investigation team or a part of such a team operating in the State shall perform their functions as such members or seconded members, as the case may be, under the direction and control of the team leader.

(3) Subject to this Act, a seconded member of a joint investigation team or a part of such a team operating in the State shall while the team or the part aforesaid is so operating be subject to the law of the State in the same manner as if he or she were a member of the team appointed under section 6 (2)(b).

(4) A member of a joint investigation team appointed under paragraph (b) or (c) of section 6 (2), or a seconded member, of a joint investigation team or a part of such a team operating in the State may not take investigative measures.

(5) A member of a joint investigation team appointed under section 6 (2), or a seconded member, of a joint investigation team or a part of such a team operating in the State may, if permitted by law, be present when investigative measures are being taken unless the team leader decides that the member or seconded member or either of them should not be so present for any reason including the following:

(a) for operational reasons, or

(b) by reason of the nature of the offence, it is not appropriate for the member or seconded member to be so present.

(6) Without prejudice to Part VII of the Act of 1994, evidence obtained during the course of criminal investigations conducted by a joint investigation team or a part of such a team operating in the State shall remain in the possession of the Garda Síochána or, if not already in their possession, be taken into their possession.

(7) Where a joint investigation team or a part of such a team operating in the State requires assistance in obtaining evidence in another Member State that established the team and a seconded member of the team or the part aforesaid appointed by the competent authority of that Member State makes a request to the relevant authority in that Member State for such assistance, any evidence received from that Member State pursuant to such a request shall be deemed to have been obtained by virtue of a letter of request issued under section 52 of the Act of 1994 and, for that purpose, the relevant authority in that Member State, other than a court or tribunal exercising jurisdiction in that Member State, shall be deemed to be an authority to which subsection (3)(b) of that section applies.

(8) The Minister may receive a request for assistance in obtaining evidence in the State under section 51 of the Act of 1994 from a member of a joint investigation team assigned under section 6 (1), who is performing functions as a seconded member of the team or a part of it in another Member State in which the team or the part is operating and, for that purpose, the member of the team shall be deemed to be an authority to which subsection (1)(b) of the said section 51 applies.

(9) The Minister may receive a request for a search warrant authorising entry, search and seizure in relation to any place in the State under section 55(4) of the Act of 1994 from a member of a joint investigation team assigned under section 6 (1), who is performing functions as a seconded member of the team or a part of it in another Member State in which the team or the part is operating and, for that purpose, the member of the team shall be deemed to be an authority to which paragraph (b) of the said section 55(4) applies.

(10) While a joint investigation team or a part of such a team is operating in another Member State, the members of the team or the part aforesaid shall perform their functions as seconded members of the team or the part aforesaid in accordance with the agreement to establish the team.

(11) Where a joint investigation team or a part of such a team is operating in another Member State, a member of the team may, in accordance with the law of the State, furnish information that is available in the State to the team or the part aforesaid for the purposes of the criminal investigations being conducted by it.

(12) In this section “evidence” includes documents and other articles.

8. —(1) An agreement under section 3 (4) or 4(3) to establish a joint investigation team shall be in writing and shall specify the following:

(a) the parties to the agreement;

(b) the purposes for which the team is established;

(c) the identity and nationality (if known) of the person or persons whose conduct is to be investigated;

(d) the membership of the team, including the identity (if known) of the member of it who is to be the team leader in each of the Member States (including the State) establishing the team and in which it or a part of it is to operate;

(e) the period for which the team is to operate;

(f) the financial arrangements for the team, including arrangements for the payment to its members of remuneration and allowances for expenses (if any) incurred by them and the payment of other expenses that may be incurred by it in the performance of its functions;

(g) the participants (if any) in the team and whether section 7 (5) is to apply to such participants; and

(h) such other terms and conditions (if any) as are agreed by the Competent Authority and the other competent authority or authorities concerned.

(2) If the period for which a joint investigation team is to operate is extended under section 5 (1), the agreement under subsection (1) to establish the team shall be amended accordingly.

(3) If the Competent Authority agrees under section 5 (3) with the other competent authority or authorities concerned to amend the agreement establishing a joint investigation team, the agreement under subsection (1) to establish the team shall be amended accordingly.

(4) If the State pursuant to an agreement under subsection (4) of section 5 joins a joint investigation team, the agreement to establish the team concerned, as amended by the agreement under that subsection, shall insofar as is reasonably practicable be in accordance with subsection (1).

(5) If another Member State pursuant to an agreement under section 5 (5) joins a joint investigation team, the agreement under subsection (1) to establish the team concerned shall be amended to take account of that agreement under section 5 (5).

9. —(1) The Competent Authority may agree with the other competent authority or authorities concerned to permit any of the following persons (in this Act referred to as “participants”) to participate, on such terms and conditions as may be agreed with the body or authority designating those persons, in the activities of a joint investigation team:

(a) one or more officers designated by Europol,

(b) one or more officers designated by a body, such as Eurojust, established under Title VI of the Treaty on European Union,

(c) one or more officers designated by the European Commission or other institution of the European Communities, or

(d) one or more officers designated by an authority of a country or territory other than a Member State or a part of such a State, and the Minister may designate such a country or territory by order.

(2) Participants in a joint investigation team shall provide support or advice or both to the team.

(3) Subsections (2)(b), (3) and (4) of section 7 , section 11 and 12 and subsections (3) and (4) of section 13 shall apply to participants in a joint investigation team in the same manner as they apply to seconded members of the team with the following modifications, namely—

(a) in section 11 (1), the reference to the competent authorities of the Member States (including the State) that established the team shall be construed as a reference to those competent authorities and the bodies or authorities that designated officers to be participants in the team,

(b) in section 12 (a), the reference to members of a police force of another Member State shall be construed as a reference to members of any police force, and

(c) in section 13 (4)—

(i) in paragraph (a), the reference to the competent authority of the Member State that appointed the seconded members of the joint investigation team or the part of it concerned shall be construed as a reference to the body or authority that designated the officers concerned to be participants in the joint investigation team or the part of it concerned, and

(ii) in paragraph (b), the reference to another Member State or its competent authority shall be construed as a reference to the body or authority that designated the officers concerned to be participants in the team or the part of it concerned,

and any other necessary modifications.

(4) Section 7 (5) shall, with any necessary modifications, apply to participants in a joint investigation team in the same manner as it applies to seconded members of the team if it is so provided in the agreement under section 8 to establish the team.

(5) The Minister may by order amend or revoke an order under this section including an order under this subsection.

(6) An order under this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas.

10. —The Garda Síochána Act 1989 is amended—

(a) in section 3, by the substitution of the following subsection for subsection (2) (inserted by section 5(a) of the Europol Act 1997 ):

“(2) Notwithstanding anything contained in the Acts, a member of the Garda Síochána to whom this section for the time being applies shall be liable to serve outside the State—

(a) with a contingent of the Garda Síochána which is despatched for service with an International United Nations Force,

(b) as a liaison officer with Europol, or

(c) as a member of a joint investigation team within the meaning of the Criminal Justice (Joint Investigation Teams) Act 2004.”,

and

(b) in section 4, by the substitution of the following subsection for subsection (1) (inserted by section 5(b) of the Europol Act 1997 ):

“(1) The Minister may by regulations, made with the consent of the Minister for Health and Children, provide for the keeping of a record of—

(a) the death of a member of the Garda Síochána,

(b) the death of the spouse or any of such other members of the family of a member of the Garda Síochána as may be specified in the regulations, and

(c) the birth of a child of a member of the Garda Síochána,

occurring outside the State while the member of the Garda Síochána is serving outside the State with an International United Nations Force, as a liaison officer with Europol or as a member of a joint investigation team within the meaning of the Criminal Justice (Joint Investigation Teams) Act 2004 and, as respects a death referred to in paragraph (b) of this subsection or a birth, in such circumstances as may be specified in the regulations.”.

11. —(1) Any information lawfully obtained by a member or seconded member of a joint investigation team or a part of such a team while operating in the State in his or her capacity as such a member or seconded member that is not otherwise available to the competent authorities of the Member States (including the State) that established the team may be used for but only for—

(a) the purposes for which the joint investigation team was established,

(b) subject to subsection (2), the detection, investigation and prosecution of criminal offences other than those in respect of which the team was established if the prior consent of the Member State where such information became available has been obtained,

(c) the prevention of an immediate and serious threat to public security in one of the Member States concerned and only if the Member State where such information became available has been informed of such use and, without prejudice to paragraph (b), a criminal investigation is conducted subsequently into any matter arising from such a threat, and

(d) such other purposes within the scope of this Act as are agreed by the Competent Authority and the competent authority or authorities concerned.

(2) The consent of the State under subsection (1)(b) may be withheld only in cases in which—

(a) the use of the information concerned would prejudice criminal investigations that are being conducted in the State, or

(b) the State may refuse assistance or co-operation under Part VII of the Act of 1994 in respect of the information concerned.

12. —Where a joint investigation team or a part of such a team is operating in the State, seconded members of the team shall—

(a) in the case of such seconded members who are members of a police force of another Member State, be regarded as members of the Garda Síochána, and

(b) in the case of any other such seconded members, be regarded as members of the team who are not members of the Garda Síochána,

with respect to criminal offences committed against them, or by them, in the performance of their functions as such seconded members.

13. —(1) The State shall be liable for any injury, loss or damage caused in another Member State by members of a joint investigation team or a part of such a team in the performance of their functions as seconded members of the team or the part in accordance with the law of the Member State in which the team or the part is operating.

(2) The State shall reimburse another Member State in full in respect of any amount paid by that Member State to any person in respect of such injury, loss or damage as is referred to in subsection (1).

(3) Where in the performance of their functions as seconded members of a joint investigation team or a part of such a team operating in the State, injury, loss or damage is caused by the seconded members, the State shall be liable to pay compensation or damages or provide another appropriate remedy in respect of such injury, loss or damage in the same manner and to the same extent (if any) as it would be liable to pay compensation or damages or provide such a remedy in respect of that injury, loss or damage if it were caused by the members of the team or the part aforesaid in the performance of their functions as such members.

(4) Subsection (3) does not preclude the State from seeking reimbursement of any amount of compensation or damages it has paid or other loss it has incurred under that subsection from—

(a) the competent authority of the Member State that appointed the seconded members of the joint investigation team or the part of it concerned who caused the injury, loss or damage concerned, or

(b) persons, other than another Member State or its competent authority, who may be liable for the injury, loss or damage concerned.

14. —This Act shall not affect any other arrangements that exist between the State and another Member State or States regarding the establishment or operation of teams (by whatever name called) similar in nature and function to joint investigation teams or any other provisions (statutory or otherwise) in relation to such establishment or operation.

15. —Any expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas and any expenses incurred by the Minister for Finance in the administration of this Act shall be paid out of moneys provided by the Oireachtas.

16. — Section 5 of the Europol Act 1997 is repealed.

17. —(1) This Act may be cited as the Criminal Justice (Joint Investigation Teams) Act 2004 .

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

¹ OJ No. L 162, 20.06.2002, p. 1.