Criminal Justice (Mutual Assistance) Act 2008

Criminal Justice (Mutual Assistance) Act 2008 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2008 Criminal Justice (Mutual Assistance) Act 2008 Criminal Justice (Mutual Assistance) Act 2008 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Revised Act Acht Athbh… Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 7 of 2008 CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 ARRANGEMENT OF SECTIONS

PART 1

Preliminary and General Section 1. Short title and commencement.

PART 2

Information about Financial Transactions for Criminal Investigation Purposes 12. Interpretation (Part 2).

Information about financial transactions for use in the State 13. Account information order and account monitoring order.

Information about financial transactions for use in designated state 15. Request from designated state for information about financial transactions.

Supplementary 20. Variation or discharge of account information order or account monitoring order.

PART 3

Interception of Telecommunications Messages Introductory 22. Interpretation (Part 3).

Requests for interception where technical assistance required 23. Request to member state for interception.

Notifications of other interceptions 26. Notification to member state of interception.

Miscellaneous 28. Indirect interception of telecommunications messages.

PART 4

Freezing, Confiscation and Forfeiture of Property

Chapter 1

Interpretation 31. Interpretation (Part 4).

Chapter 2

Freezing of Property 32. Freezing order relating to evidence.

Chapter 3

Confiscation of Property 49. Request for confiscation of property in designated state.

Chapter 4

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

PART 5

Provision of Evidence

Chapter 1

Interpretation 61. Interpretation (Part 5).

Chapter 2

Taking of Evidence 62. Evidence from person in designated state.

Evidence of prisoners 65. Transfer of prisoner to give evidence or assist criminal investigation in State.

Evidence through television link 67. Evidence through television link for use in State.

Evidence by telephone link for use outside State 71. Request for evidence by telephone link.

Search for Evidence 73. Search for evidence at place in designated state.

Chapter 3

Identification evidence 76. Definitions (Chapter 3).

PART 6

Other Forms of Assistance

Chapter 1

Service of documents 80. Documents for service outside State.

Chapter 2

Examining objects and sites 83. Examining objects and sites.

Chapter 3

Restitution 84. Restitution of stolen property from designated state.

Chapter 4

Controlled deliveries 88. Interpretation (Chapter 4).

PART 7

Mutual Assistance in Criminal Matters Between the State and the United States of America 93. Definitions (Part 7).

PART 8

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

SCHEDULE 1 Text of 2000 Convention SCHEDULE 2 Text of 2001 Protocol SCHEDULE 3 Text of Agreement with Iceland and Norway SCHEDULE 4 Text of Articles 49 and 51 of Schengen Convention SCHEDULE 5 Text of Framework Decision SCHEDULE 6 Text of Title III of EC/Swiss Confederation Agreement SCHEDULE 7 Text of 2005 Council Decision SCHEDULE 8

PART 1

Text of 1959 Convention

PART 2

Text of First Additional Protocol to 1959 Convention SCHEDULE 9 Text of Second Additional Protocol to 1959 Convention SCHEDULE 10 Text of Chapter IV of 2005 Convention SCHEDULE 11 Text of Articles 13, 14, 18, 19 and 20 of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000.

SCHEDULE 12 Text of Articles 46, 49, 50 and 54 to 57 of the United Nations Convention against Corruption, done at New York on 31 October 2003 SCHEDULE 13 Text of EU/US Agreement on Mutual Legal Assistance SCHEDULE 14 Text of Ireland/US Treaty of 18 January 2001, as applied by Instrument of 14 July 2005 Acts Referred to Bail Act 1997 1997, No. 16 Bankers’ Books Evidence Act 1879 42 & 43 Vic., c. 11 Bankruptcy Act 1988 1988, No. 27 Central Bank Act 1971 1971, No. 24 Children Act 2001 2001, No. 24 Companies Act 1963 1963, No. 33 Companies Acts 1963 to 2006 Courts (Supplemental Provisions) Act 1961 1961, No. 39 Criminal Assets Bureau Act 1996 1996, No. 31 Criminal Justice Act 1994 1994, No. 15 Criminal Justice Act 2006 2006, No. 26 Criminal Justice (Joint Investigation Teams) Act 2004 2004, No. 20 Criminal Justice (Miscellaneous Provisions) Act 1997 1997, No. 4 Criminal Justice (Terrorist Offences) Act 2005 2005, No. 2 Criminal Justice (Theft and Fraud Offences) Act 2001 2001, No. 50 Criminal Justice (United Nations Convention against Torture) Act 2000 2000, No. 11 Data Protection Act 1988 1988, No. 25 Data Protection Acts 1988 and 2003 Dentists Act 1985 1985, No. 9 European Arrest Warrant Act 2003 2003, No. 45 Europol Act 1997 1997, No. 38 Extradition Acts 1965 to 2001 Extradition (Amendment) Act 1994 1994, No. 6 Extradition (European Convention on the Suppression of Terrorism) Act 1987 1987, No. 1 Extradition (European Union Conventions) Act 2001 2001, No. 49 Garda Síochána Act 2005 2005, No. 20 Immigration Act 1999 1999, No. 22 Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 1993, No. 10 Medical Practitioners Act 1978 1978, No. 4 Misuse of Drugs Act 1977 1977, No. 12 Nurses Act 1985 1985, No. 18 Official Secrets Act 1963 1963, No. 1 Police (Property) Act 1897 60 & 61 Vic., c. 30 Postal and Telecommunications Services Act 1983 1983, No. 24 Prisons Act 1970 1970, No. 11 Prisons Act 1972 1972, No. 7 Probation of Offenders Act 1907 7 Edw. 7., c. 17 Registration of Deeds and Title Act 2006 2006, No. 12 Registration of Deeds and Title Acts 1964 and 2006 Statutory Declarations Act 1938 1938, No. 37 Transfer of Sentenced Prisoners Act 1995 1995, No. 16 Number 7 of 2008 CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 AN ACT— (a) TO ENABLE EFFECT TO BE GIVEN IN THE STATE TO CERTAIN INTERNATIONAL AGREEMENTS, OR PROVISIONS OF SUCH AGREEMENTS, BETWEEN THE STATE AND OTHER STATES RELATING TO MUTUAL ASSISTANCE IN CRIMINAL MATTERS; (b) TO REPEAL AND RE-ENACT, WITH AMENDMENTS, PART VII (INTERNATIONAL CO-OPERATION) OF THE CRIMINAL JUSTICE ACT 1994;

AND TO PROVIDE FOR RELATED MATTERS. [28th April, 2008] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

Preliminary and General Short title and commencement.

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

Interpretation (general).

2.— (1) In this Act, except where the context otherwise requires— “Act of 1994” means the Criminal Justice Act 1994 ; “Agreement with Iceland and Norway” means the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the 2000 Convention and 2001 Protocol, done at Brussels on 19 December 2003; “Articles 49 and 51”, in relation to the Schengen Convention, means those Articles of the Convention, as applied to the State by Council Decision (2002/192/EEC) of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis, but does not include paragraph (a) (repealed by Article 2.2 of the 2000 Convention) of Article 49; “authority” includes a person; “1959 Convention” means the European Convention on Mutual Assistance in Criminal Matters, done at Strasbourg on 20 April 1959, and includes the Additional Protocol of 17 March 1978 thereto; “2000 Convention” means the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, done at Brussels on 29 May 2000; “2005 Convention” means the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, done at Warsaw on 16 May 2005; “2005 Council Decision” means Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and co-operation concerning terrorist offences; “1977 Terrorism Convention” means the European Convention on the Suppression of Terrorism, done at Strasbourg on 27 January 1977; “Central Authority” means the authority mentioned in section 8 ; “criminal conduct” means any conduct— (a) which constitutes an offence, or (b) which occurs in a designated state and would, if it occurred in the State, constitute an offence; “criminal investigation”— (a) means an investigation into whether a person has committed an offence (within the meaning of the relevant Part) under the law of the State or a designated state in respect of which, where appropriate, a request for assistance may be made under the relevant international instrument, and (b) includes an investigation into whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds; “criminal proceedings” means proceedings, whether in the State or a designated state, against a person for an offence and includes— (a) proceedings to determine whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds,

(b) proceedings concerning measures relating to— (i) the deferral of delivery or suspension of enforcement of a sentence or preventive measure, (ii) conditional release, or (iii) a stay or interruption of enforcement of a sentence or preventive measure, (c) in relation to requests for assistance by a requesting authority in a member state— (i) without prejudice to subsection (2)(b) of sections 74 and 75 (requests for evidence or evidential material), proceedings brought by an administrative authority in respect of conduct which is punishable under the law of the State or that state or of both of them, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters, (ii) proceedings in claims for damages arising from wrongful prosecution or conviction, (iii) clemency proceedings, (iv) civil actions joined to criminal proceedings, as long as the criminal court concerned has not taken a final decision in the criminal proceedings, and (v) proceedings in respect of measures relating to— (I) the deferral of delivery or suspension of enforcement of a sentence or preventive measure, (II) conditional release, or (III) a stay or interruption of enforcement of a sentence or preventive measure, and (d) in relation to requests for assistance by a requesting authority in a designated state (other than a member state), without prejudice to subsection (3) of sections 74 and 75 proceedings brought by an administrative authority in respect of conduct which is punishable under the law of the State or that state or of both of them, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters; “designated state” means a member state and any other state designated under section 4 ; “EC/Swiss Confederation Agreement” means the Co-operation Agreement between the European Community and its member states, of the one part, and the Swiss Confederation, of the other part, to combat fraud and any other illegal activity to the detriment of their financial interests, done at Luxembourg on 26 October 2004; “evidence” means oral evidence or, as appropriate, any document or thing which could be produced as evidence in criminal proceedings, including any information in non-legible form which could be converted into permanent and legible form for the purposes of those proceedings; “Framework Decision” means Council Framework Decision (2003/577/JHA) of 22 July 2003 on the execution in the European Union of orders freezing property or evidence;

“imprisonment” includes detention and, in relation to a designated state, any other form of deprivation of liberty; “international instrument” means any of the following agreements, or provisions of agreements, between the State and other states or another state in relation to mutual assistance in criminal matters: (a) the 2000 Convention; (b) the 2001 Protocol; (c) the Agreement with Iceland and Norway; (d) Articles 49 and 51 of the Schengen Convention; (e) the Framework Decision; (f) Title III of the EC/Swiss Confederation Agreement; (g) the 2005 Council Decision; (h) the 1959 Convention; (i) the Second Additional Protocol; (j) Chapter IV of the 2005 Convention; (k) Articles 13, 14, 18, 19 and 20 of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000; (l) Articles 46, 49, 50 and 54 to 57 of the United Nations Convention against Corruption, done at New York on 31 October 2003; (m) a bilateral agreement between the State and a designated state for the provision of such assistance; and (n) any reservation or declaration made in accordance with such an instrument; “member state” means— (a) a member state of the European Union (other than the State), for the purposes of mutual assistance under the provisions of the 2000 Convention, 2001 Protocol, Articles 49 and 51 of the Schengen Convention, Framework Decision or 2005 Council Decision, and (b) Iceland and Norway or any other designated state, for the purposes of mutual assistance under any of those provisions; “Minister” means the Minister for Justice, Equality and Law Reform; “offence”— (a) means an offence in respect of which a request for mutual assistance may be made under the relevant international instrument, (b) includes a revenue offence, if or to the extent that the relevant international instrument or the law of the designated state concerned provides for mutual assistance in respect of such an offence, but (c) does not include a political offence; “place” means a physical location and includes— (a) a dwelling, residence, building or abode, (b) a site, (c) a vehicle, whether mechanically propelled or not, (d) a vessel, whether sea-going or not, (e) an aircraft, whether capable of operation or not, and (f) a hovercraft; “political offence”, except in

Part 2

— (a) includes an offence connected with a political offence, (b) does not include any offence in respect of which a person may be surrendered to another state under the European Arrest Warrant Act 2003 or the Extradition Acts 1965 to 2001; “prison” means a place of custody administered by or on behalf of the Minister (other than a Garda Síochána station) and includes— (a) St. Patrick’s Institution, (b) a place provided under section 2 of the Prisons Act 1970 , and (c) a place specified under section 3 of the Prisons Act 1972 ; “property”, except in

Part 4

, includes— (a) money and all other property, real or personal, movable or immovable, (b) a chose in action and any other intangible or incorporeal property, (c) proceeds of the disposal of property, and (d) evidence; “2001 Protocol” means the Protocol to the 2000 Convention, done at Luxembourg on 16 October 2001; “relevant international instrument” means the international instrument in accordance with which a request for assistance is made; “request” means a request for assistance which is made by a requesting authority under and in accordance with a relevant international instrument; “requesting authority” means— (a) a court or tribunal exercising jurisdiction in criminal proceedings in a designated state and making a request, or (b) any other authority in that state appearing to the Minister to have the function of making the request; “revenue offence”— (a) means an offence under the law of the State or a designated state in connection with taxes, duties, customs or exchange regulation, (b) includes such an offence under the law of a designated state irrespective of whether the law of the State provides for taxes, duties, customs or exchange regulation of the same kind as that state provides, but (c) does not include— (i) an offence involving the use or threat of force or perjury or the forging of a document issued under statutory authority, or (ii) an offence alleged to have been committed by an officer of the Revenue of that state in his or her capacity as such officer; “Schengen Convention” means the Convention, signed in Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985; “Second Additional Protocol” means the Second Additional Protocol of 8 November 2001 to the 1959 Convention; “state”, in relation to a state other than the State, includes a territory, whether in the state or outside it— (a) for whose external relations the state or its government is wholly or partly responsible, and (b) to which the relevant international instrument applies or whose law provides for mutual assistance in criminal matters, and “designated state” and “member state” are to be construed accordingly.

General restriction on providing assistance.

3.— (1) Assistance shall be refused— (a) if the Minister considers that providing assistance would be likely to prejudice the sovereignty, security or other essential interests of the State or would be contrary to public policy (ordre public), (b) if there are reasonable grounds for believing— (i) that the request concerned was made for the purpose of prosecuting or punishing a person on account of his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, (ii) that providing assistance— (I) may prejudice a person’s position for any of those reasons, or (II) may result in the person being subjected to torture or to any other contravention of the European Convention on Human Rights, (c) if the request is not in accordance with the relevant international instrument, or (d) if, and for as long as, the provision of assistance would prejudice a criminal investigation, or criminal proceedings, in the State, and may be refused on any other ground of refusal of assistance specified in the relevant international instrument.

Designated state.

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

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

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

Requests (general).

6.— (1) Subject to the provisions of this Act concerning particular requests, the relevant international instrument concerned has effect in the State in relation to— (a) the form of the requests and the information they are to provide, (b) the action that may be taken where a request does not comply with the provisions of the instrument or where the information provided is not sufficient to enable the request to be dealt with, (c) any restrictions in the instrument in relation to the refusal of particular requests, (d) any requirements in the instrument relating to the protection, disclosure, use or transmission of information or evidence received under it, (e) the formalities and procedures in dealing with requests, unless those formalities and procedures are contrary to the fundamental principles of the law of the State, and (f) the transmission and mode of transmission of requests, including, where so provided for in the instrument, transmissions via the International Criminal Police Organisation (Interpol) in urgent cases.

Transmission of evidence to designated state (general).

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

Central Authority.

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

Part 3

, and of co-operating, in accordance with the relevant international instrument, with corresponding persons or bodies in designated states in relation to requests received from them.

Spontaneous exchange of information.

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

Repeals.

10.— Without prejudice to section 11 , the following provisions are repealed: (a) Part VII (International Co-operation) of the Act of 1994 and the Second Schedule (taking of evidence for use outside State) thereto; (b) section 15 (amendment of Act of 1994) of the Criminal Justice (Miscellaneous Provisions) Act 1997 ; and (c) section 22 (amendment of section 56A of Act of 1994) of the Criminal Justice (Theft and Fraud Offences) Act 2001 .

Saving.

11.— (1) Where— (a) mutual assistance between the State and another state was provided for by or under a provision of Part VII of the Act of 1994 before the repeal of that Part on the commencement of section 10 (a), and (b) the state is not designated under section 4 for the purposes of that assistance, the assistance concerned shall continue to be provided under and in accordance with the corresponding provision of this Act, which accordingly shall have effect, with any necessary modifications, for that purpose.

PART 2

Information about Financial Transactions for Criminal Investigation Purposes Interpretation(Part 2).

12.— (1) In this Part, except where the context otherwise requires— “account” means an account, of whatever nature, in a financial institution, whether in the State or a designated state, which is held or controlled by a person and includes— (a) an account held by the person under a different name or different version of the person’s name, (b) an account held by the person jointly with another person, (c) an account held by another person on which the person is authorised to operate, whether by way of a power of attorney or otherwise, (d) an account held by another person (in this Part referred to as a “sending or recipient account”) to or from which payments have been or are being made from or to an account in the name of a person specified in an account information order, and (e) any other account held by another person, where information in relation to it would be relevant to the investigation referred to in the request; “account information order” means an order under section 13 or 17 that a specified financial institution shall, within a time to be specified by the applicant for the order by notice in writing or any extension of that time under subsection (2)— (a) state— (i) whether an account or accounts in the name or names of a specified person or persons or in a specified different version or versions of that name or those names is or are held in the financial institution, and (ii) whether it has become aware, in the ordinary course of business, of any other account or accounts in the institution on which the specified person or persons is or are authorised to operate, whether by way of a power of attorney or otherwise, and (b) if so, provide to the applicant or his or her nominee, in a manner and form specified in the notice, any information that it has in relation to any such account or accounts and any sending or recipient accounts, including details of any operations thereon specified in the notice during any period so specified; “account monitoring order” means an order under section 13 or 17 that a specified financial institution shall enable the applicant for the order to monitor, during a period, and in a manner and form, specified by the applicant by notice in writing, any operations so specified that are being carried out on an account or accounts in a specified name or names or in a specified different version or versions of that name or those names in the financial institution; “financial institution” means— (a) if the financial institution is in the State— (i) a person who holds or has held a licence from the Central Bank and Financial Services Authority of Ireland under

section 9 of the Central Bank Act 1971 , (ii) a person referred to in section 7(4) of that Act, or (iii) a credit institution (within the meaning of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 ( S.I. No. 395 of 1992 )) which has been authorised by that Authority to carry on the business of a credit institution in accordance with the supervisory enactments within the meaning of those Regulations, or (b) if the financial institution is in a designated state, a bank or a non-bank financial institution; “form”, where it occurs in the definition of account information order and account monitoring order, means a form which— (a) is permanent and legible, whether or not it has been converted into such a form from an electronic or other non-legible form, or (b) if so specified by the applicant for such an order, is an electronic or other non-legible form which is capable of being converted into a permanent and legible form; “political offence”— (a) includes an offence connected with a political offence, (b) does not include— (i) an offence to which section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act 1987 (the “Act of 1987”) applies, or (ii) an offence, as defined in subsection (3), of conspiracy or association to commit such an offence; “2001 Protocol” means the Protocol of 16 October 2001 to the 2000 Convention; “sending or recipient account” has the meaning given to it by paragraph (d) of the definition of “account”.

Information about financial transactions for use in the State Account information order and account monitoring order.

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

Request to designated state for information about financial transactions.

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

Information about financial transactions for use in designated state Request from designated state for information about financial transactions.

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

Action on request.

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

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

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

Transmission of information obtained to requesting authority.

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

Requesting authority to be informed of possible further investigations.

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

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

20.— (1) A judge of the High Court may vary or discharge an account information order or account monitoring order on application by— (a) a member of the Garda Síochána not below the rank of inspector, or (b) any financial institution affected by the order.

Offences under this Part.

21.— (1) A financial institution in the State is guilty of an offence— (a) if, without reasonable excuse, it does not comply with an account information order or account monitoring order, or (b) if, while purporting to comply with such an order, it— (i) makes a statement which it knows to be false or misleading in a material particular, or (ii) recklessly makes a statement which is false or misleading in such a particular.

PART 3

Interception of Telecommunications Messages Introductory Interpretation (Part 3).

22.— In this Part, unless the context otherwise requires— “Act of 1983” means the Postal and Telecommunications Services Act 1983 ; “Act of 1993” means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 ; “competent authority” means the person or body in a member state who or which in the opinion of the Minister is the competent authority for the purposes of Title III of the 2000 Convention; “interception” means the interception of telecommunication messages to or from a person specified in the authorisation of the interception at a telecommunications address so specified; “telecommunications address” has the meaning that it has in the Act of 1993.

Requests for interception where technical assistance required Request to member state for interception.

23.— (1) This section applies where— (a) for the purpose of a criminal investigation the Minister has given an authorisation of an interception under section 2 of the Act of 1993, (b) the person specified in the authorisation is present in the State or a member state, and (c) technical assistance from a member state is needed to intercept the telecommunications messages concerned.

Request to State for interception.

24.— (1) This section applies where— (a) a criminal investigation is taking place in a member state, (b) a lawful interception order or warrant for the interception of telecommunications messages to or from a specified person or telecommunications address has been issued in the member state in connection with the investigation, (c) a competent authority in the member state makes a request to the Minister for— (i) the interception and immediate transmission to the authority or a person nominated by it of telecommunications messages to or from the telecommunications address concerned, or (ii) the interception and recording of the messages and the transmission of the recording to the authority or the person nominated by it, and (d) the specified person— (i) is present in the member state or another member state and the competent authority in the former member state needs the technical assistance of the State to intercept the telecommunications messages, or (ii) is present in the State and the interception can be made therein.

Action on request.

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

Notifications of other interceptions Notification to member state of interception.

26.— (1) Where— (a) for the purpose of a criminal investigation the Minister has given an authorisation of an interception under section 2 of the Act of 1993, (b) the telecommunications address of the person specified in the authorisation is being used on the territory of a member state, and (c) technical assistance from the member state is not required to carry out the interception, the Minister shall inform the competent authority in the member state of the authorisation— (i) before the interception, if the Minister is then aware that the person is present on that territory, or (ii) in any other case, immediately after the Minister becomes so aware.

Notification by member state of interception.

27.— (1) This section applies where— (a) the competent authority in a member state has authorised an interception, (b) the telecommunications address of the person specified in the authorisation is being used on the territory of the State, (c) technical assistance from the State is not required to carry out the interception, and (d) the competent authority notifies the Minister accordingly in accordance with Article 20 of the 2000 Convention.

Miscellaneous Indirect interception of telecommunications messages.

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

Application of Act of 1993 in relation to this Part.

29.— The Act of 1993 applies and has effect in relation to this Part with the necessary modifications, including the following: (a) references in the Act of 1993 to “this Act” are to be construed as references to this Part; (b) references therein to an authorisation are to be construed as references to— (i) an authorisation deemed under section 25

Amendment of section 110 of Act of 1983.

30.— Section 110 (general ministerial powers in relation to postal and telecommunications services) of the Act of 1983 is amended by the addition of the following subsections: “(6) A person who, without reasonable excuse, does not comply with a direction under this section is guilty of an offence and liable— (a) on summary conviction, to a fine not exceeding €5,000, or (b) on conviction on indictment, to a fine.

PART 4

Freezing, Confiscation and Forfeiture of Property

Chapter 1

Interpretation Interpretation(Part 4).

31.— (1) In this Part: “appeal” includes any proceedings for the discharge or setting aside of a judgment and any application for a new trial or stay of execution; “certificate” means the certificate— (a) provided for in Article 9 of the Framework Decision, and (b) the standard form of which is set out in the Annex to the Decision; “confiscation co-operation order” has the meaning given to it by section 51 ; “confiscation order” means a confiscation order within the meaning of the Act of 1994; “defendant” means the person to whose property an external freezing order or external confiscation order relates; “external confiscation order” means an order made by a court in a designated state for the purpose of— (a) recovering property in the State which was received or obtained as a result of or in connection with conduct which would, if it occurred in the State, constitute an indictable offence, (b) recovering the value of such property, or (c) depriving a person of a pecuniary advantage so received or obtained; “external forfeiture order” means an order for the forfeiture of property in the State which is made by a court in a designated state in or in connection with proceedings resulting from conduct which would, if it occurred in the State, constitute an indictable offence; “external freezing order” means any measure— (a) taken provisionally by a competent judicial authority of a designated state in criminal proceedings to prevent the destruction, transformation, moving, transfer, disposal or use of specified property in the State that could be subject to confiscation or be evidence in those proceedings, and (b) made for the purpose of— (i) subsequent confiscation of the property, or (ii) protection of evidence; “forfeiture co-operation order” has the meaning given to it by section 60 ; “freezing co-operation order” has the meaning given to it by section 35 ; “freezing order” means— (a) an order under section 24 (as amended by section 105 (a) of this Act) of the Act of 1994, (b) an order under section 14 or 15 of the Criminal Justice (Terrorist Offences) Act 2005 , or (c) an order under section 32 , which relates to property in a designated state or in so far as it does so; “issuing judicial authority” means a judicial authority in a designated state, as defined in the law of that state, which makes, validates or in any way confirms an external freezing order; “issuing state” means the designated state in which an issuing judicial authority exercises jurisdiction; “property” includes property of any description, corporeal or incorporeal, movable or immovable and wherever situated, which the competent judicial authority in the designated state considers—

(a) to be the proceeds of an offence, (b) to be equivalent to either the full value or a part of the value of such proceeds, or (c) to be the instrumentalities or objects of an offence, and includes documents evidencing title to or an interest in the property; “realisable property” means— (a) in relation to a freezing co-operation order or confiscation co-operation order 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.

Chapter 2

Freezing of Property Freezing order relating to evidence.

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

Transmission of freezing order for enforcement outside the State.

33.— (1) If— (a) any property to which an application for a freezing order relates is in a member state, and (b) the application is granted, the applicant may request the judge concerned to cause a certificate to be completed.

Transmission of external freezing orders to State for enforcement.

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

Recognition and enforcement of external freezing orders.

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

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

36.— (1) A freezing co-operation order may apply— (a) where particular property is specified in the external freezing order, to the property so specified, and (b) in any other case— (i) to realisable property held by a specified person, whether the property is described in the freezing co-operation order or not, and (ii) to any realisable property held by a specified person, being property transferred to the person after the external freezing order was made.

Registration of freezing co-operation orders.

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

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

38.— (1) The powers of the High Court under section 36 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to making available for recovery property which may become liable to be recovered under any confiscation co-operation order that may be made in the defendant’s case.

Receivers: supplementary provisions.

39.— A receiver appointed under section 36 who takes any action— (a) in relation to property which is not realisable property, being an action which he or she would be entitled to take if it were such property, (b) believing, and having reasonable grounds for believing, that he or she is entitled to take that action in relation to that property, is not liable to any person in respect of any loss or damage resulting from the action except in so far as the loss or damage is caused by his or her negligence.

Bankruptcy of defendant, etc.

40.— (1) Where a person who holds realisable property is adjudicated bankrupt— (a) property for the time being subject to a freezing co-operation order made before the order adjudicating the person bankrupt, and (b) any proceeds of property realised by virtue of section 36 , for the time being in the hands of a receiver, is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act 1988 .

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

41.— (1) Without prejudice to the generality of any provision of any other enactment, where— (a) the Official Assignee or a trustee appointed under Part V of the Bankruptcy Act 1988 seizes or disposes of any property in relation to which his or her functions are not exercisable because it is for the time being subject to a freezing co-operation order, and (b) at the time of the seizure or disposal he or she believes, and has reasonable grounds for believing, that he or she is entitled (whether under an order of the court or otherwise) to seize or dispose of the property, he or she is not liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his or her negligence in so acting, and he or she has a lien on the property, or the proceeds of its sale, for such of his or her expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his or her remuneration as may reasonably be assigned for his or her acting in connection with those proceedings.

Application of proceeds of realisation.

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

Winding up of company holding realisable property.

43.— (1) Where realisable property is held by a company and an order for its winding up has been made or a resolution has been passed by it for a voluntary winding up, the functions of the liquidator (or any provisional liquidator) are not exercisable in relation to— (a) property for the time being subject to a freezing co-operation order made before the relevant time, and (b) any proceeds of property realised by virtue of section 36 for the time being in the hands of a receiver.

Duration of freezing co-operation order.

44.— A freezing co-operation order remains in force— (a) where the external freezing order is for the purpose of securing evidence, until the evidence is transferred to the issuing state or a request for such a transfer is refused, (b) where the order is for the purpose of subsequent confiscation of property, 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 .

Variation or discharge of freezing co-operation order.

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

Refusal to make freezing co-operation order.

46.— (1) Without prejudice to section 3 , the High Court may refuse to make a freezing co-operation order only if— (a) the offence to which the external freezing order relates is not an offence to which the relevant international instrument relates, (b) where the external freezing order was made in a member state, the certificate is not produced, is incomplete or manifestly does not correspond to the external freezing order, (c) there is an immunity or privilege under the law of the State which makes it impossible to make a freezing co-operation order, (d) it is immediately clear from the information provided in a certificate that compliance with a request for the transfer of evidence or confiscation of property in relation to the offence in respect of which the external freezing order has been made would infringe the ne bis in idem principle, or (e) in the case of an external freezing order from a designated state (other than a member state), there is not a reasonable basis for believing— (i) that there are sufficient grounds for making the order, or (ii) that the property will be subject to an external confiscation order.

Postponement of freezing co-operation order.

47.— (1) The High Court may postpone the making of a freezing co-operation order— (a) where making it might prejudice an ongoing criminal investigation in the State, until such time as the Court deems reasonable, (b) where the property or evidence concerned is already subject to a freezing order in criminal proceedings in the State, until that order is discharged, or (c) subject to subsection (2), where, in the case of an external freezing order freezing property with a view to its subsequent confiscation, the property is already subject to an order made in other proceedings in the State, until that order is discharged.

Subsequent treatment of frozen property.

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

Part 5

.

Chapter 3

Confiscation of Property Request for confiscation of property in designated state.

49.— (1) If a confiscation order relates to property in a designated state, the registrar or clerk of the court concerned shall, on request and subject to any conditions that may be specified by rules of court, give to the Director of Public Prosecutions— (a) a duly authenticated copy of the order, and (b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

Transmission to State of external confiscation order.

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

Confiscation co-operation order.

51.— (1) The Central Authority, on receipt of an external confiscation order and accompanying documents, may cause an application to be made to the High Court for an order (a “confiscation co-operation order”) for the confiscation of the property in the State to which the external confiscation order relates.

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

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

TABLE Amount outstanding under confiscation order Period of imprisonment Not exceeding €650 Exceeding €650 but not exceeding €1,300 Exceeding €1,300 but not exceeding €3,250 Exceeding €3,250 but not exceeding €6,500 Exceeding €6,500 but not exceeding €13,000 Exceeding €13,000 but not exceeding €26,000 Exceeding €26,000 but not exceeding €65,000 Exceeding €65,000 but not exceeding €130,000 Exceeding €130,000 but not exceeding €325,000 Exceeding €325,000 but not exceeding €1,300,000 Exceeding €1,300,000 45 days 3 months 4 months 6 months 9 months 12 months 18 months 2 years 3 years 5 years 10 years Realisation of property subject to confiscation co-operation order.

53.— (1) Where— (a) 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.

Interest on sums unpaid under confiscation co-operation orders.

54.— (1) Subject to subsection (2), if any sum required to be paid by a person under a confiscation co-operation order is not paid when it is required to be paid (whether on the making of the order or at a later time specified by the Court), the person shall be liable to pay interest on the sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from the person under the order.

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

55.— (1) Where a sum of money payable or remaining to be paid under an external confiscation order is expressed in a currency other than the euro, the confiscation co-operation order shall require payment of an equivalent euro amount, calculated at the baseline rate of exchange prevailing between that currency and the euro on the date of the making of the confiscation co-operation order.

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.

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

56.— (1) The powers of the High Court under section 53 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to recovering property which is liable to be recovered under the confiscation co-operation order concerned.

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

57.— Sections 39 , 40 , 41 , 42 and 43 apply in relation to confiscation co-operation orders as they apply in relation to freezing co-operation orders, and accordingly— (a) references to section 36 in sections 39 , 40 and 43 shall be construed as references to section 53 , and (b) references in sections 40 , 41 , 42 and 43 to a freezing co-operation order shall be construed as references to a confiscation co-operation order.

Chapter 4

Forfeiture of Property Transmission of external forfeiture order to designated state for enforcement.

58.— (1) If an order of a court relates to the forfeiture of property in a designated state, the registrar or clerk of the court concerned shall, on request and subject to any conditions that may be specified by rules of court, give to the Director of Public Prosecutions— (a) a duly authenticated copy of the order, and (b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

Transmission of external forfeiture order to State for enforcement.

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

Forfeiture co-operation order.

60.— (1) The Central Authority, on receipt of an external forfeiture order and accompanying documents, may cause an application to be made to the High Court for an order (a “forfeiture co-operation order”) for the forfeiture of realisable property in the State to which the external forfeiture order relates.