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7 2008

Criminal Justice (Mutual Assistance) Act 2008

PART 8

Miscellaneous

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

95 .— (1) The national unit designated under the Europol Act 1997 is deemed to be the specialised service within the Garda Síochána referred to in Article 2(1) of the 2005 Council Decision and has the functions assigned under that Article to such a service.

(2) The Minister may, in accordance with Article 2(2) of the 2005 Council Decision, designate an authority or authorities as the Eurojust national correspondent for terrorism matters, and any authority so designated has the functions assigned under that Article to such a correspondent.

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

96 .— (1) The Criminal Justice (Joint Investigation Teams) Act 2004 applies and has effect, with the necessary modifications, as if references in it to another Member State or other such States included references to a designated state or states (other than a member state or states).

(2) Section 9 (participants in joint investigation teams) of the said Act of 2004 is amended—

(a) in subsection (1), by the substitution of the following paragraph for paragraph (d):

“(d) one or more officers designated by an authority of a designated state (other than a Member State or part of such a State) within the meaning of the Criminal Justice (Mutual Assistance) Act 2008,”

and

(b) by the deletion of subsections (5) and (6).

Presence of representatives of requesting state at execution of request.

97 .— (1) The Minister may, at the instance of the designated state concerned, authorise a representative of the authority concerned in that state (in this section referred to as “the representative”) to be present at the place where its request is being executed by a member or members of the Garda Síochána.

(2) Such an authorisation may be subject to such conditions as the Minister may determine.

(3) The presence of the representative at any such place does not require the consent of the person affected by the execution of the request.

(4) The representative, while so present—

(a) shall be subject to the direction of the member or members executing the request,

(b) shall have access to the same places and objects (including documents) as that member or those members, and

(c) may be authorised to put or propose questions and suggest measures of investigation.

(5) The representative shall not disclose, in breach of the rights of the person affected by the execution of the request, confidential information resulting from his or her presence, except to any other such representative or representatives and to his or her authorities.

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

98 .— Where a member of the Garda Síochána is authorised by the relevant authority in a designated state to be present at the execution of a request—

(a) the member shall not disclose, in breach of judicial confidentiality or the rights of the person affected by the execution of the request, information resulting from his or her presence, except to any other member, and

(b) any such information may not be admitted as evidence in any proceedings until a decision on transmission of the documents relating to execution has acquired the force of res judicata in the designated state.

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

99 .— Information or evidence obtained in response to a request by a court or the Director of Public Prosecutions may not be used for purposes other than those for which the request was made unless such use is in accordance with the relevant international instrument.

Disclosure prejudicing investigation.

100 .— (1) Where a request is made in connection with a criminal investigation in the State or a designated state, any person who, knowing or suspecting that the investigation is taking place, makes any disclosure which is likely to prejudice the investigation is guilty of an offence.

(2) A person guilty of an offence under this section is liable—

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

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

(3) In proceedings for an offence under this section it is a defence to prove that the defendant—

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

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

Liability of officers of body corporate.

101 .— (1) Where—

(a) an offence under this Act is committed by a body corporate, and

(b) it is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, a person who—

(i) was a director, manager, secretary or other similar officer of the body corporate, or

(ii) was purporting to act in any such capacity,

the person is guilty of an offence and liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts or defaults of a member in connection with the member’s functions of management as if he or she were a director or manager of the body corporate.

(3) Subsections (1) and (2) apply, with the necessary modifications, in relation to offences under this Act committed by an unincorporated body.

Evidence in proceedings (general).

102 .— (1) In any proceedings a document purporting—

(a) to be—

(i) a request or a supporting or related document,

(ii) an order made or warrant issued by a court, tribunal or authority in a designated state,

(iii) a record of the making or issue of such an order or warrant, or

(iv) a record of the date and mode of service of a document in a designated state,

and

(b) to be signed by or on behalf of the court or tribunal concerned or an authority appearing to be competent to do so,

is admissible, without further proof, as evidence of the matters mentioned in the document.

(2) In any proceedings a document purporting to—

(a) relate to—

(i) the identity of an item required as evidence in criminal proceedings or for the purposes of a criminal investigation,

(ii) the continuity of its custody, or

(iii) the integrity of its condition,

and

(b) to be signed by a person appearing to have responsibility for custody of the item,

is admissible, without further proof, as evidence of the matters mentioned in the document.

(3) In any proceedings a document purporting—

(a) to be a translation of a document mentioned in subsection (1) or (2) or of a statement or document mentioned in section 62 (8), 73 (8) or 77 (8), and

(b) to be certified as correct by a person appearing to be competent to do so,

is admissible, without further proof, as evidence of the translation.

(4) In any proceedings a document purporting to be a copy of a document mentioned in subsection (1) or (2), and—

(a) to be certified to be such a copy by or on behalf of the court, tribunal or authority issuing it or by an officer of the central authority of the state concerned, or

(b) to bear the seal of the court, tribunal or either such authority concerned,

is deemed to be a true copy of the document.

(5) In any proceedings a document purporting—

(a) to be a certificate given by or on behalf of a court, tribunal or authority in a designated state, or

(b) to bear the seal of such a court, tribunal or other authority,

is admissible, without further proof, as evidence of such a certificate or seal.

(6) In any proceedings a document purporting—

(a) to set out the text of a reservation or declaration under a relevant international instrument, and

(b) to be signed by an officer of the Department of Foreign Affairs,

is admissible, without further proof, as evidence of the reservation or declaration.

Provisional measures.

103 .— (1) Where—

(a) criminal proceedings have been instituted, or a criminal investigation is taking place, in a designated state, and

(b) a competent authority in that state makes a request to the Minister, in accordance with the relevant international instrument, for the taking of provisional measures within the meaning of that instrument,

the Minister may cause an application to be made to the High Court for the grant of the requested measures.

(2) On such an application the High Court may grant provisional, including protective, measures of any kind that the Court has power to grant in proceedings that, apart from this section, are within its jurisdiction.

(3) The measures may be granted for such period, and subject to such conditions or limitations, as the Court, having had regard to the provisions of the relevant international instrument, may specify.

(4) The Court may refuse to grant the measures sought if, in its opinion, the fact that it has not jurisdiction, apart from this section, in relation to the subject matter of the proceedings concerned makes it inexpedient for it to grant such measures.

Recognition of third party rights.

104 .— (1) A court, when having regard under this Act to the rights of third parties, may, and shall if so required by the relevant international instrument, recognise any decision relating to those rights made by a court or tribunal in the designated state concerned.

(2) Such recognition may be refused if—

(a) the third parties did not have an adequate opportunity to assert their rights,

(b) the decision is irreconcilable with a court decision already made in the State in regard to those rights, or

(c) it is contrary to public policy (ordre public).

Amendment of Criminal Justice Act 1994.

105 .— The Act of 1994 is amended—

(a) in sections 3(1), 24 and 25, 28 to 30 and 65, by the substitution of “freezing order” for “restraint order”,

(b) in section 30, by the substitution of “freezing” for “restraint”,

(c) by the insertion of the following subsection after section 3(16):

“(16A) References in this Act (other than section 9) to an offence in respect of which a confiscation order might be made under section 9 of this Act shall be construed as references to an indictable offence (other than a drug trafficking offence), irrespective of whether a person has been convicted of it on indictment.”,

(d) by the substitution of the following Table for the Table to section 19:

Amount outstanding under confiscation order

Period of imprisonment

Not exceeding €650

Exceeding €650 but not exceeding €1,300

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

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

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

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

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

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

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

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

Exceeding €1,300,000

45 days

3 months

4 months

6 months

9 months

12 months

18 months

2 years

3 years

5 years

10 years

”,

(e) by the addition to Part IV of the following section:

“Revenue offence.

32A.— For the avoidance of doubt it is hereby declared that, in relation to an offence under the law of a country or territory other than the State, references in this Part to an offence shall be construed as including references to an offence in connection with taxes, duties, customs or exchange regulation.”,

and

(f) in section 60, by the substitution of “restraint (including a freezing order)” for “restraint”,

(g) by the substitution of the following section for section 63:

“Order to make material available.

63.— (1) For the purposes of an investigation into whether a person has engaged in criminal conduct or criminal proceedings in relation thereto, a member of the Garda Síochána may apply for an order under subsection (3) of this section in relation to any particular material or material of a particular description to a judge of the District Court for the district where the material is situated.

(2) On such an application the judge may make an order under subsection (3) of this section, if satisfied—

(a) that there are reasonable grounds for suspecting that the person has engaged in criminal conduct,

(b) that the material concerned is likely to be of substantial value (whether by itself or together with other material) for the purposes of such investigation or proceedings, and

(c) that there are reasonable grounds for believing that material should be produced or that access to it should be given, having regard to the benefit likely to accrue to the investigation or proceedings and any other relevant circumstances.

(3) An order under this subsection—

(a) shall require any person who appears to the judge to be in possession of the 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 within 7 days, unless it appears to the judge that another period would be appropriate in the particular circumstances of the case,

(b) may, if the order relates to material at any place and on application by the member concerned, 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 the member, if the person 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 take away the material, and

(iv) to take such other steps as appear to the member to be necessary for preserving the material and preventing interference with it.

(4) Where the material consists of information contained in a computer, an order under subsection (3) of this section shall have 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.

(5) Such an order—

(a) in so far as it may empower a member to take away a document or to be given access to it, shall authorise him or her to make a copy of it and to take the copy away,

(b) shall not confer any right to production of, or access to, any material subject to legal privilege, and

(c) subject to paragraph (b) of this subsection and subsection (10) of this section, shall have effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.

(6) Any material taken away by a member under this section may be retained by him or her for use as evidence in any proceedings.

(7) 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 or any person to whom the order relates.

(8) A member searching a place under the authority of an order under this section 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 the carrying out of his or her duties,

(ii) fails to comply with a requirement under paragraph (a) of this subsection, or

(iii) gives a name or address which the member has reasonable cause to believe is false or misleading.

(9) A person who—

(a) obstructs or attempts to obstruct a member acting under the authority of an order under this section,

(b) fails to comply with a requirement under subsection (3)(a) of this section, or

(c) gives a false or misleading name or address to a member,

shall be 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.

(10) 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 subsection (3) of this section shall 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.

(11) In this section—

“ criminal conduct ” means—

(a) drug trafficking,

(b) the commission of an indictable offence or more than one such offence,

(c) holding funds subject to confiscation,

(d) benefiting from—

(i) drug trafficking,

(ii) an indictable offence or more than one such offence,

(iii) assets or proceeds deriving from criminal conduct or the receipt or control of such assets or proceeds, including conduct which occurs outside the State and which would constitute an indictable offence or more than one such offence—

(I) if it occurred in the State, and

(II) if it constituted an offence or more than one such offence under the law of the state or territory concerned.”.

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

106 .— Section 8(7) of the Criminal Assets Bureau Act 1996 is amended by the deletion of “Any information” and the substitution of “Subject to section 5(1), any information”.

Personal data protection.

107 .— (1) The provisions of the relevant international instrument have effect in respect of the use of personal data communicated to or otherwise obtained by a person in the State under the instrument.

(2) Subsection (1) is without prejudice to the application of section 7 (duty of care owed by data controllers and data processors) of the Data Protection Act 1988 in respect of the use of such data.

(3) The Data Protection Acts 1988 and 2003 apply in relation to such data in respects other than those relating to their use.

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

108 .— Section 32A of the Courts (Supplemental Provisions) Act 1961 applies, with any necessary modifications, in relation to the exercise by a judge of the District Court of a power conferred by section 74 (8), 75 (9) or 87 of this Act or under subsection (2) of section 63 (as substituted by section 105 (g) of this Act) of the Act of 1994.

Regulations.

109 .— (1) Regulations may be made by the Minister for the purpose of enabling any provision of this Act, and of any of the following international instruments in their application to the State, to have full effect:

(a) a relevant international instrument;

(b) the EU - US Agreement, the Ireland - US Treaty, and the Instrument as to the application of that Treaty, as defined in section 93 .

(2) Regulations under this section may include such consequential, incidental, transitional or supplementary provisions as may be necessary for that purpose.

Expenses.

110 .— The 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.

Laying of orders or regulations before Houses of Oireachtas.

111 .— An order (other than an order under section 1 (2)) or regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling it is passed by either such House within the next 21 days on which that House has sat after it is laid before it, the order or regulation is annulled accordingly, but without prejudice to the validity of anything previously done under it.