(a) may vary or discharge a forfeiture co-operation order on the application of any person claiming to own or have an interest in the property concerned or to be otherwise affected by the order and may in that connection consult the court which made the external forfeiture order, and (b) shall— (i) vary a forfeiture co-operation order in accordance with any variation in the external forfeiture order, and (ii) if satisfied that the external forfeiture order has been revoked, discharge it.
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(8)The Police (Property) Act 1897 does not apply to property which vests in the Commissioner of the Garda Síochána by virtue of this section.
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(9)This section applies to any property which is in the possession of the Garda Síochána under section 61(4) of the Act of 1994.
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(10)Nothing in this section affects any enactment whereby property is, or may be ordered to be, forfeited as a result of a conviction for an offence.
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PART 5
\n
Provision of Evidence
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Chapter 1
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Interpretation Interpretation (Part 5).
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61.— In this Part— “evidence” does not include information provided under
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Part 2
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in relation to financial transactions; “place” includes premises; “witness” includes an expert witness and a person suspected of the offence which has given rise to the request concerned.
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Chapter 2
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Taking of Evidence Evidence from person in designated state.
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62.— (1) Where it appears to a judge at a sitting of any court that criminal proceedings have been instituted or a criminal investigation is taking place in the State, the judge may issue a letter (a “letter of request”) requesting assistance in obtaining from a person in a designated state such evidence as is specified in the letter for use in the proceedings or investigation.
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(2)Application for a letter of request may be made by the Director of Public Prosecutions or a person charged in any such proceedings that have been instituted.
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(3)The letter of request shall be sent to the Central Authority for transmission to the appropriate authority.
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(4)Notwithstanding subsections (1) to (3), where proceedings in respect of an offence have been instituted or a criminal investigation is taking place, the Director of Public Prosecutions may issue and transmit a letter of request directly to the appropriate authority.
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(5)The letter of request shall include— (a) a statement that the evidence is required for the purpose of criminal proceedings or a criminal investigation, (b) a brief description of the conduct constituting the offence concerned, and (c) any other available information that may assist the appropriate authority in complying with the request.
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(6)Evidence obtained by virtue of this section shall not, without the consent of the appropriate authority, be used for any purpose other than that permitted by the relevant international instrument or specified in the letter of request.
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(7)When any such evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to the appropriate authority unless the authority indicates that it need not be returned.
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(8)A statement of the evidence of a witness— (a) taken in accordance with a letter of request, and (b) certified by or on behalf of the court, tribunal or authority by which it was taken to be an accurate statement of the evidence, is admissible, without further proof, in proceedings relating to the offence concerned as evidence of any fact stated therein of which oral evidence would be so admissible.
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(9)A court, when considering whether any evidence taken from a person pursuant to a letter of request should be excluded in the exercise of its discretion to exclude evidence otherwise admissible, shall, where appropriate, have regard to— (a) whether the law of the state concerned allowed the person and any other party concerned, when the evidence was being taken, to be legally represented and cross-examined, and (b) any other respects in which the taking of the evidence may have differed from the taking of comparable evidence in the State.
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(10)Nothing in this section prevents the Director of Public Prosecutions from issuing a letter of request for assistance in obtaining a statement of evidence or taking possession of material evidence in a designated state for the purposes of criminal proceedings or a criminal investigation where the witness or witnesses concerned will give evidence in those proceedings or any proceedings that may be instituted after the investigation.
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(11)In this section, “appropriate authority”, in relation to the place where the evidence is to be obtained, means— (a) a court or tribunal specified in the letter of request and exercising jurisdiction in that place, or (b) any other authority recognised by the government of the state concerned as the appropriate authority for receiving the letter.
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Evidence for use in designated state.
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63.— (1) This section applies, subject to section 64 , in relation to a request for assistance in obtaining evidence in the State from a person (in this section referred to as a “witness”) for the purpose of criminal proceedings, or a criminal investigation, in a designated state.
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(2)On receipt of such a request the Minister, if of opinion that this section applies in relation to it, may, subject to subsection (3)— (a) request the President of the District Court to nominate a judge of that Court to receive the evidence to which the request relates, and (b) send the judge a copy of the request and of any accompanying or related documents.
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(3)The Minister shall not exercise the power conferred by subsection (2) unless an assurance is given by the requesting authority that any evidence that may be supplied in response to the request will not, without the consent of the nominated judge or the witness, be used for any purpose other than that permitted by the relevant international instrument or specified in the letter of request.
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(4)For the purposes of this section the nominated judge— (a) has the powers of the District Court in criminal proceedings, including its powers— (i) in relation to securing the attendance of witnesses, the production of documents or other articles, taking evidence on oath, compelling witnesses to give evidence or to produce documents or other things and the conduct generally of the proceedings for the taking of evidence, and (ii) under any enactment or rule of law relating to the protection of witnesses against intimidation, (b) may direct that the evidence, or any part of it, be received otherwise than in public if of opinion that such a direction is necessary to protect— (i) the witness or other person, or (ii) confidential or sensitive information, and (c) shall inform the witness of his or her rights under section 64 .
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(5)The evidence may be given through a live television link in any case where it may be so given in proceedings under any enactment.
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(6)Any person who is summoned to give evidence and who, without reasonable excuse, does not answer any question or comply with a requirement to produce any document or other thing is guilty of an offence and liable, on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
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(7)The Bankers’ Books Evidence Act 1879 applies to proceedings under this section as it applies to other proceedings before a court.
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(8)No order for costs may be made in the proceedings.
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Privilege of witnesses.
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64.— (1) A person is not compelled to give any evidence in proceedings under section 63 which he or she could not be compelled to give— (a) in criminal proceedings in the State, or (b) subject to subsection (2), in criminal proceedings in the state concerned.
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(2)Subsection (1)(b) does not apply unless the claim of the person to be exempt from giving the evidence is conceded by the requesting authority.
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(3)Where the claim is not conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but the evidence shall not be transmitted to the requesting authority if a court in the state concerned, on the matter being referred to it, upholds the claim.
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(4)Without prejudice to subsection (1), a person may not be compelled under this section to give any evidence— (a) in his or her capacity as an officer or servant of the State, or (b) if to do so would be prejudicial to the security of the State.
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(5)In any proceedings referred to in subsection (1) a certificate purporting to be signed by or on behalf of the Minister to the effect that it would be prejudicial to the security of the State for a person to give any evidence is admissible, without further proof, as evidence of that fact.
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(6)In this section references to giving evidence include references to answering any question and to producing any document or other thing, and the reference in subsection (3) to the transmission of evidence given by a person is to be construed accordingly.
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Evidence of prisoners Transfer of prisoner to give evidence or assist criminal investigation in State.
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65.— (1) In this section, “prisoner” means a person who is detained in custody in a designated state— (a) under a sentence or order of a court exercising criminal jurisdiction in that state, or (b) having been transferred there from the State under section 5 (issue of warrants for the transfer of sentenced prisoners outside State) of the Transfer of Sentenced Prisoners Act 1995.
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(2)Where— (a) a witness order has been made or a witness summons issued in criminal proceedings in respect of a prisoner, or (b) it appears to the Minister that it is desirable for a prisoner to be identified in, or otherwise to assist by his or her presence, such proceedings or a criminal investigation, the Minister, at the request of the Director of Public Prosecutions or a person charged in any such proceedings, may issue a warrant providing for the prisoner to be transferred to the State.
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(3)A warrant shall not be issued unless the appropriate authority in the designated state concerned provides a written statement by the prisoner consenting to be transferred for that purpose.
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(4)A warrant issued under this section shall be transmitted by the Central Authority to the authority in the designated state that appears to the Central Authority to be the appropriate authority for receiving it, together with a request for the transfer of the prisoner to the State.
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(5)The warrant is authority for— (a) bringing the prisoner to the State, (b) taking the prisoner to, and detaining him or her in, a prison, (c) taking the prisoner to and from the place where the prisoner’s evidence is to be heard, and (d) returning the prisoner in custody to the designated state.
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(6)A prisoner is deemed to be in lawful custody while in the State.
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(7)A prisoner who escapes from custody or is unlawfully at large may be arrested without warrant by a member of the Garda Síochána and taken in custody to a prison.
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(8)A person (other than a member of the Garda Síochána) who is authorised to have custody of a prisoner by or for the purposes of a warrant under this section is deemed to be such a member for the purposes of this section.
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(9)The law relating to— (a) the control of entry into the State of non-nationals (within the meaning of the Immigration Act 1999 ), (b) the duration and conditions of their stay in the State, (c) their obligations while in the State, and (d) their removal from the State, does not apply in relation to a prisoner who is a non-national while he or she is present in the State in pursuance of a warrant under this section but, if the warrant ceases to have effect while the prisoner is so present, that law shall thereupon apply, with any necessary modifications, in relation to him or her.
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(10)A prisoner while in the State pursuant to the warrant may not be proceeded against, sentenced, detained or subjected to any other restriction on his or her personal freedom in respect of any offence committed before arriving in the State.
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Transfer of prisoner to give evidence or assist investigation outside State.
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66.— (1) The Minister may, on receipt of a request in that behalf, issue a warrant for the transfer of a person serving a sentence of imprisonment in a prison (a “prisoner”) to a designated state for the purpose of— (a) giving evidence in criminal proceedings, or assisting in a criminal investigation, in that state, or (b) being identified in, or otherwise assisting by his or her presence, such proceedings or investigation.
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(2)A warrant may be issued only if the prisoner has made a written statement consenting to his or her being transferred for that purpose.
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(3)Where, by reason of the prisoner’s youth or physical or mental condition, it appears to the Minister inappropriate for the prisoner to act for himself or herself, the consent shall be given by a person appearing to the Minister to be an appropriate person to act on the prisoner’s behalf.
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(4)A warrant is authority for— (a) taking the prisoner from the prison and delivering him or her into the custody of a person representing the requesting authority concerned at a place of departure from the State, (b) detaining the prisoner in the designated state, and (c) bringing the prisoner back to the State and returning him or her to the prison.
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(5)A warrant may not be issued unless an assurance is given by the requesting authority that the prisoner will not be proceeded against, sentenced, detained or subjected to any other restriction on his or her personal freedom in respect of any offence under the law of the designated state committed before the prisoner’s departure from the State.
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(6)The period spent in custody under the warrant is included in the period of imprisonment or detention to be served by the prisoner in the State.
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(7)A prisoner is deemed to be in lawful custody when being taken from or to a prison under the warrant.
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(8)A prisoner who escapes from custody or is unlawfully at large may be arrested without warrant by a member of the Garda Síochána and taken in custody to a prison.
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(9)A person (other than a member of the Garda Síochána) who is authorised to have custody of a prisoner by or for the purposes of a warrant under this section is deemed to be such a member for the purposes of this section.
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Evidence through television link Evidence through television link for use in State.
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67.— (1) This section applies where— (a) criminal proceedings have been instituted in the State against a person, (b) a witness in the proceedings is in a designated state, and (c) it is not desirable or possible for the witness to give evidence in person.
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(2)Where this section applies, an application may be made by or on behalf of the Director of Public Prosecutions or the accused to a judge of the court of trial at a sitting of the court to issue a letter (a “letter of request”) requesting the provision of facilities in the designated state concerned to enable the witness to give evidence in the proceedings through a live television link.
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(3)The judge may grant the application if satisfied that it is not desirable or possible for the witness to give evidence in person.
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(4)The letter of request shall be accompanied by a document signed by the judge and stating— (a) the name, address and, if known, the nationality of the witness, (b) the court which is to hear the evidence, (c) the name of the judge conducting the hearing, (d) why it is not desirable or possible for the witness to give evidence in person, and (e) the likely date of the hearing.
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(5)The request shall be sent to the Central Authority for transmission— (a) in urgent cases, to the court or tribunal specified in the request, or (b) in any other case, to any authority recognised by the state concerned as the appropriate authority for receiving such requests.
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(6)If the name of the judge conducting the hearing is not available at the time the letter of request is issued, it shall be sent to the Central Authority for such transmission as soon as it becomes available.
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(7)The accused shall be given an opportunity to cross-examine and re-examine the witness at the hearing.
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(8)Evidence given through the live television link at the hearing shall be videorecorded.
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(9)The videorecording of the evidence or, if the accused consents, an edited version of it, is admissible at the trial of the offence as evidence of any fact of which direct oral evidence would be admissible, unless the trial judge is of the opinion that to do so would not be in the interests of justice.
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(10)The provisions of the relevant international instrument concerning a hearing through a live television link, in so far as they relate to a requesting state and are not incorporated in this section, have effect in the State, with the necessary modifications, in relation to a hearing under this section.
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(11)A witness who makes a statement which is material in the proceedings and which he or she knows to be false or does not believe to be true is guilty of an offence and liable— (a) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both, or (b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
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(12)Proceedings for an offence under subsection (11) may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the State.
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(13)In this section “videorecording” means any recording, on any medium, from which a moving image may be produced and includes the accompanying soundtrack, and cognate words shall be construed accordingly.
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Request for evidence through television link for use outside State.
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68.— (1) This section applies to a request for a witness who is present in the State to give evidence through a television link in criminal proceedings before a court or tribunal in a designated state.
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(2)The request shall include the following information: (a) the name, address and, if known, the nationality of the witness; (b) the court or authority making the request; (c) the name of the person or persons who will conduct the hearing; (d) a statement as to why it is not desirable or possible for the witness to give evidence in person; (e) the likely date of the hearing.
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Action on request.
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69.— The Minister, if of opinion— (a) that it is not desirable or possible for the witness to give evidence in person in the state concerned, and (b) that the request complies with section 68 , may request the President of the District Court to nominate a judge of that Court to summon the witness to attend at a suitable venue within the judge’s district for the purpose of giving effect to the request.
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Taking of the evidence.
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70.— (1) The nominated judge of the District Court shall summon the witness concerned to give evidence through a live television link at a suitable venue within the district to which the judge is assigned.
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(2)For the purpose of ensuring compliance with the request the nominated judge has the powers of the District Court in criminal proceedings, including its powers— (a) in relation to securing the attendance of the witness, taking evidence on oath and compelling the witness to give evidence or to produce documents or other things, and (b) under any enactment or rule of law relating to the protection of witnesses against intimidation.
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(3)The evidence shall be given in accordance with the laws and procedures of the requesting state to the extent that they do not contravene the fundamental principles of the law of the State.
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(4)In particular, the witness may not be compelled to give any evidence which he or she could not be compelled to give in criminal proceedings in the State or the designated state.
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(5)Where necessary for the protection of the witness and in agreement with the requesting authority, the evidence may be taken otherwise than in public.
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(6)Subject to subsection (7), the proceedings shall be conducted directly by, or under the direction of, a judge of the designated state in accordance with its own laws.
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(7)Where the nominated judge is of opinion that the taking of evidence is not in accordance with the fundamental principles of the law of the State, he or she shall take immediate action to ensure that those principles are complied with.
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(8)The nominated judge and the witness shall be assisted by an interpreter, where necessary.
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(9)When the evidence has been taken, the nominated judge shall send a record of the evidence given by the witness to the Minister for transmission to the requesting authority, indicating— (a) the date and place of the taking of the evidence, (b) the name of the witness, (c) the name and function of any other person present and participating in the proceedings, (d) whether an oath was administered to the witness, and (e) the technical conditions under which the proceedings took place.
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(10)A witness who— (a) makes a statement material in the proceedings which he or she knows to be false or does not believe to be true, or (b) does not testify when under an obligation to do so, is guilty of an offence and liable— (i) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both, or (ii) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
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Evidence by telephone link for use outside State Request for evidence by telephone link.
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71.— (1) This section applies to a request for a witness who is present in the State to give evidence by telephone link in criminal proceedings before a court or tribunal in a designated state.
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(2)The request shall include the following information: (a) the name, address and, if known, the nationality of the witness; (b) the court or tribunal which is to hear the evidence; (c) the person or persons who will conduct the proceedings; (d) a statement that the witness is willing to give evidence by telephone link in the proceedings; (e) the likely date of the hearing.
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Taking of evidence.
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72.— (1) The Minister, if of opinion that the witness is willing to give evidence by telephone link in the proceedings concerned, may request the President of the District Court to nominate a judge of that Court to summon the witness to attend at a suitable venue within the judge’s district for the purpose of giving effect to the request.
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(2)Before the evidence is taken, the witness shall be asked to confirm that he or she is willing to give the evidence by telephone link.
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(3)
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Section 70
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applies in relation to taking evidence under this section by telephone link as it applies in relation to taking evidence under that section by television link.
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Search for evidence Search for evidence at place in designated state.
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73.— (1) Where it appears to a judge at a sitting of any court that— (a) criminal proceedings have been instituted or a criminal investigation is taking place, and (b) evidence for the purposes of the proceedings or investigation may be obtained at a place in a designated state, the judge may, in accordance with the relevant international instrument, issue a letter (a “letter of request”) requesting assistance in obtaining the evidence.
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(2)Application for a letter of request may be made by the Director of Public Prosecutions or a person charged in any such proceedings that have been instituted.
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(3)The letter of request shall be sent to— (a) the Central Authority for transmission to the appropriate authority, or (b) in urgent cases, directly to that authority.
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(4)Notwithstanding subsections (1) to (3), where proceedings for an offence have been instituted or an offence is being investigated, the Director of Public Prosecutions may issue and transmit a letter of request directly to the appropriate authority.
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(5)The letter of request shall include— (a) a statement that the evidence is required for the purpose of criminal proceedings or a criminal investigation and will be returned to the appropriate authority when no longer required for that purpose, unless the authority indicates otherwise, (b) information relating to the nature and location of the evidence concerned, (c) a brief description of the conduct constituting the offence concerned, and (d) any other available information that may assist the appropriate authority in complying with the letter of request.
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(6)Evidence obtained by virtue of this section shall not, without the consent of the appropriate authority, be used for any purpose other than that permitted by the relevant international instrument or specified in the letter of request.
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(7)When any such evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to the appropriate authority unless the authority indicates that it need not be returned.
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(8)In any proceedings relating to the offence— (a) evidence (other than documentary evidence) which purports— (i) to have been obtained as a result of a request under this section, and (ii) to be certified by or on behalf of the appropriate authority to be such evidence, is admissible without further proof, and (b) documentary evidence which purports— (i) to have been so obtained, and (ii) to be so certified, is admissible, without further proof, as evidence of any fact stated in it of which oral evidence would be admissible.
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(9)In this section, “appropriate authority” means— (a) a court or tribunal exercising criminal jurisdiction in the place in a designated state where the evidence referred to in the letter of request is to be obtained, or (b) any other body or authority recognised by the government of that state as the appropriate authority for receiving the letter.
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Search for evidence for use outside State (general).
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74.— (1) Subject to subsections (2) and (3), this section applies to a request for assistance in obtaining evidence for the purposes of criminal proceedings, or a criminal investigation, in a designated state, where there is power under any enactment to issue a warrant for the search of a place in respect of an offence constituted by the conduct giving rise to the request.
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(2)This section does not apply to such a request from a member state unless the act is punishable— (a) under the law of the State and the member state by imprisonment for a maximum period of at least 6 months, or (b) under the law of the State by such imprisonment and under the law of the member state by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters.
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(3)This section does not apply to such a request from a designated state (other than a member state) unless the conduct giving rise to the request is punishable under both the law of the State and the law of that state.
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(4)The Minister, if of opinion that this section applies to the request, may, subject to subsection (5), send the request and any accompanying and related documents to the Commissioner of the Garda Síochána to arrange for the request to be complied with.
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(5)In the case of a request from a designated state, the Minister may not proceed in accordance with subsection (4) unless an assurance is given by the requesting authority— (a) that any evidence that may be supplied in response to the request will not, without the Minister’s prior consent, be used for any purpose other than that permitted by the relevant international instrument or specified in the request, and (b) that the evidence will be returned when no longer required for the purpose so specified (or any other purpose for which such consent has been obtained), unless the Minister indicates that its return is not required.
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(6)A member of the Garda Síochána shall not enter any place in furtherance of the request without the consent of the occupier or the entry being authorised by a warrant under this section.
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(7)Unless the evidence sought is already in the possession of the Garda Síochána, a member of the Garda Síochána not below the rank of inspector shall, on production of a copy of the request and of any accompanying or related documents, apply to the judge of the District Court for the district where the place concerned is situated for a warrant under subsection (8).
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(8)If, on the application, the judge is satisfied that this section applies to the request and it appears to him or her that there are reasonable grounds for believing that entry to any place is necessary for the purposes of complying with it, the judge may issue a warrant for the search of the place and any persons found there.
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(9)The warrant shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other members or persons or both as the member thinks necessary— (a) to enter the place named in the warrant at any time or times within one week of the date of its issue, on production, if so requested, of the warrant and, if necessary, by the use of reasonable force, (b) to search it and any person found there, (c) to access, examine, seize, take away and retain any material found there, or in the possession of a person present there at the time of the search— (i) which the member reasonably believes to be evidence of, or relating to, the commission of the offence concerned or assets or proceeds deriving from criminal conduct in the designated state or their identity or whereabouts, or (ii) whose retention is necessary to comply with the request, (d) to make a copy of any document so seized and to take the copy away, and (e) to take such other steps as appear to the member to be necessary for preserving any such material and preventing interference with it.
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(10)Where material referred to in subsection (9) consists of or includes information in non-legible form, the warrant has effect as an order to produce the material, or to give access to it, in a form which is legible and in which it can be taken away.
\n
(11)The warrant— (a) does not confer any right to examine, seize, take away or retain documents which are subject to legal privilege or to have them produced or to be given access to them, and (b) subject to paragraph (a) and subsection (14), has effect notwithstanding any other obligation as to secrecy or other restriction on the disclosure of information under any enactment or rule of law.
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(12)A member acting under the warrant may— (a) require any person present at the place where the search is being carried out to give his or her name and address to the member, and (b) arrest without warrant any person who— (i) obstructs or attempts to obstruct the member in carrying out his or her duties, (ii) does not comply with a requirement under paragraph (a), or (iii) gives a name or address which the member has reasonable cause for believing is false or misleading.
\n
(13)A person who— (a) obstructs or attempts to obstruct a member acting under the authority of a warrant under this section, (b) does not comply with a requirement under subsection (12)(a), or (c) gives a false or misleading name or address to a member, is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
\n
(14)Where— (a) material has been supplied to a Government department or other authority by or on behalf of the government of another state, and (b) an undertaking was given that the material would be used only for a particular purpose or purposes, an order under this section does not have the effect of requiring or permitting the production of, or the giving of access to, the material for any other purpose without the consent of that government.
\n
(15)The power to issue a warrant under this section is without prejudice to any other power conferred by statute to issue a warrant for the search of any place or person.
\n
(16)In this section— “evidence” includes evidence of or relating to assets or proceeds deriving from criminal conduct in the designated state concerned or their identity or whereabouts; “member state” includes the Swiss Confederation.
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Search for particular evidence for use outside State.
\n
75.— (1) Subject to subsections (2) and (3), this section applies to a request for assistance in obtaining specified evidential material or evidential material of a specified description for the purposes of criminal proceedings, or a criminal investigation, in a designated state, where there is power under any enactment to issue a warrant for the search of a place in respect of an offence constituted by the conduct giving rise to the request.
\n
(2)This section does not apply to such a request from a member state unless the act is punishable— (a) under the law of the State and the member state by imprisonment for a maximum period of at least 6 months, or (b) under the law of the State by such imprisonment and under the law of the member state by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters.
\n
(3)This section does not apply to such a request from a designated state (other than a member state) unless the conduct giving rise to the request is punishable under both the law of the State and the law of that state.
\n
(4)This section also applies to such a request from a member state which is made in connection with a request under
\n
Part 4
\n
for the freezing of evidence in proceedings for an offence which may be punished in that state by imprisonment for a term of not less than 3 years.
\n
(5)The Minister, if of opinion that this section applies to the request, may, subject to subsection (6), send the request and any accompanying and related documents to the Commissioner of the Garda Síochána to arrange for the request to be complied with.
\n
(6)The Minister shall not proceed in accordance with subsection (5) unless an assurance is given by the requesting authority— (a) that any material that may be furnished in response to the request will not, without his or her prior consent, be used for any purpose other than that permitted by the relevant international instrument or specified in the request, and (b) that the material will be returned when no longer required for the purpose so specified (or any other purpose for which such consent has been obtained), unless he or she indicates that its return is not required.
\n
(7)A member of the Garda Síochána shall not enter any place in furtherance of the request without the consent of the occupier or the entry being authorised by an order under this section.
\n
(8)Unless the material sought is already in the custody of the Garda Síochána, a member of the Garda Síochána not below the rank of inspector shall, on production of a copy of the request and of any accompanying or related documents, apply to the judge of the District Court for the district where the evidential material is situated for an order under subsection (10).
\n
(9)If, on the application, the judge is satisfied that this section applies to the request and it appears to him or her that there are reasonable grounds for believing that the person named in the request possesses the evidential material, the judge may make an order under subsection (10).
\n
(10)An order under this subsection— (a) shall require any person who appears to the judge to be in possession of the evidential material— (i) to produce it to a named member of the Garda Síochána so that he or she may take it away, or (ii) to give the member access to it, either immediately or within a period specified in the order, (b) may, if the order relates to evidential material at any place and on application by a member of the Garda Síochána, require any person who appears to the judge to be entitled to grant entry to the place to allow the member to enter it to obtain access to the material, (c) shall authorise such a member, if the person who is so required to grant entry to the place does not do so— (i) to enter the place, accompanied by such other members or persons or both as the member thinks necessary, on production if so requested of the order and, if necessary, by the use of reasonable force, (ii) to search the place and any persons present there, (iii) to access, examine, seize, take away and retain any evidential material which is found at the place or in the possession of a person so present and which the member reasonably believes to be the material concerned, and (iv) to take such other steps as appear to the member to be necessary for preserving the evidential material and preventing interference with it.
\n
(11)Where the evidential material consists of information contained in a computer, an order under this section has effect as an order to produce the material, or to give access to it, in a form which is legible and comprehensible or can be made so and in which it can be taken away.
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(12)Such an order— (a) in so far as it may empower a member of the Garda Síochána to take away a document or to be given access to it, authorises him or her to make a copy of it and to take the copy away, (b) does not confer any right to production of, or access to, any evidential material subject to legal privilege, and (c) subject to paragraph (b) and subsection (17), has effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.
\n
(13)Any evidential material taken away by a member of the Garda Síochána under this section shall be dealt with in accordance with the request.
\n
(14)A judge of the District Court may at a sitting of the Court vary or discharge an order under this section on the application of a member of the Garda Síochána or of any person to whom the order relates.
\n
(15)A member searching a place under the authority of an order under subsection (10) may— (a) require any person present at the place where the search is being carried out to give his or her name and address to the member, and (b) arrest without warrant any person who— (i) obstructs or attempts to obstruct the member in carrying out his or her duties, (ii) fails to comply with a requirement under paragraph (a), or (iii) gives a name or address which the member has reasonable cause for believing is false or misleading.
\n
(16)A person who— (a) obstructs or attempts to obstruct a member of the Garda Síochána acting under the authority of an order under this section, (b) fails to comply with a requirement in an order under this section, or (c) gives a false or misleading name or address to a member, is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
\n
(17)Where— (a) material has been supplied to a Government department or other authority by or on behalf of the government of another state, (b) an undertaking was given that the material would be used only for a particular purpose or purposes, an order under this section does not have the effect of requiring or permitting the production of, or the giving of access to, the material for any other purpose without the consent of that government.
\n
(18)This section is without prejudice to section 74 .
\n
(19)In this section— “evidential material” includes any such material relating to assets or proceeds deriving from criminal conduct in the designated state concerned or their identity or whereabouts; “member state” includes the Swiss Confederation.
\n
Chapter 3
\n
Identification evidence Definitions (Chapter 3).
\n
76.— In this Chapter— “bodily sample” means any of the following: (a) a sample of blood, hair, urine or saliva; (b) a nail or any material found under a nail; (c) a swab from any part of the body; (d) a footprint or a similar impression of any part of the body, including a dental impression; “dentist” means a person whose name is entered for the time being in the Register of Dentists maintained under the Dentists Act 1985 ; “doctor” means a person whose name is entered for the time being in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act 1978 ; “identification evidence” means a fingerprint, palm print or photograph of, or bodily sample from, a person and includes any related records; “nurse” means a person whose name is entered for the time being in the register of nurses established under section 27 of the Nurses Act 1985 .
\n
Identification evidence for use in State.
\n
77.— (1) Where it appears to a judge of any court that— (a) criminal proceedings have been instituted or a criminal investigation is taking place, and (b) identification evidence for the purposes of the proceedings or investigation may be obtained from an authority in a designated state, the judge may issue a letter (a “letter of request”) requesting assistance in obtaining the evidence.
\n
(2)Application for a letter of request may be made by the Director of Public Prosecutions or a person charged in any proceedings that have been instituted.
\n
(3)The letter of request shall be sent to— (a) the Central Authority for transmission to the appropriate authority, or (b) in urgent cases, directly to that authority.
\n
(4)Notwithstanding subsections (1) to (3), where proceedings for an offence have been instituted or an offence is being investigated, the Director of Public Prosecutions may issue and transmit a letter of request directly to the appropriate authority.
\n
(5)The letter of request shall include— (a) a statement that the evidence is required for the purpose of criminal proceedings or a criminal investigation and will be returned to the appropriate authority when no longer required for that purpose, unless the authority indicates otherwise, (b) a brief description of the conduct constituting the offence concerned, and (c) any other available information that may assist the appropriate authority in complying with the request.
\n
(6)Evidence obtained by virtue of this section shall not, without the consent of the appropriate authority, be used for any purpose other than that specified in the letter of request.
\n
(7)When any such evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to the appropriate authority unless the authority indicates that it need not be returned.
\n
(8)In any proceedings a document purporting to be— (a) a report of the taking of the identification evidence in the designated state and to be signed by, and to state the rank or other qualification of, the person who took the evidence, or (b) a record of the evidence kept by the appropriate authority and certified by it or on its behalf, is admissible, without further proof, as evidence of the matters stated in it.
\n
(9)In this section, “appropriate authority” means the authority in the designated state concerned appearing to the Director of Public Prosecutions to possess the identification evidence requested or to have the function of obtaining or arranging to obtain it.
\n
Identification evidence for use outside State.
\n
78.— A request for obtaining identification evidence for use in a designated state shall include— (a) a statement that the evidence is required in connection with criminal proceedings, or a criminal investigation, in that state, and (b) a brief description of the conduct constituting the offence.
\n
Action on request.
\n
79.— (1) The Minister may send the request to the Commissioner of the Garda Síochána for the necessary action if satisfied— (a) that it complies with section 78 , (b) that any identification evidence that may be furnished in response to the request will not, without the consent of the Minister, be used for any purpose other than that specified in the request, and (c) that the evidence— (i) will be returned by the requesting authority when no longer required for that purpose (or any other purpose for which such consent has been obtained), unless the Minister indicates otherwise, or (ii) will be dealt with in accordance with subsections (10) and (11).
\n
(2)If or in so far as the identification evidence requested is not in the possession of the Garda Síochána, the Commissioner shall instruct a member of the Garda Síochána (a “member”) to inform the person who is to provide the evidence— (a) of the nature of the evidence, (b) that it has been requested in connection with criminal proceedings, or a criminal investigation, in the designated state concerned, (c) that he or she is not obliged to provide the evidence, and (d) that, if he or she does consent to provide it, it may be given in evidence in any proceedings in that state.
\n
(3)If the person consents to provide the evidence, the member may take the evidence, or cause it to be taken, in compliance with the request and any requirements specified in the request in relation to its taking.
\n
(4)If a person who is to provide the identification evidence is in a prison— (a) evidence may be taken under this section only if it relates to an offence other than that for which the person is in custody, and (b) any evidence provided may be taken at the prison or at another place.
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(5)A bodily sample consisting of blood, pubic hair or a swab from a body orifice (other than the mouth) or a genital region may be taken under this section only by a doctor or nurse, and a dental impression may be so taken only by a dentist or doctor.
\n
(6)If required by the requesting authority, the Commissioner may arrange for a forensic test to be performed on a swab from a body orifice or a genital region.
\n
(7)Where a sample of hair other than pubic hair is taken in accordance with this section— (a) the sample may be taken by plucking hairs with their roots and, in so far as it is reasonably practicable, the hairs shall be plucked singly, and (b) no more hairs shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing.
\n
(8)The following particulars shall be recorded by the member who takes identification evidence: (a) the place, time and date at which it was taken; (b) the result of any forensic test on the evidence; (c) any other relevant particulars, including any specified by the requesting authority, and the record shall include a copy of the consent to the taking of the evidence.
\n
(9)The Commissioner shall send to the Central Authority any identification evidence— (a) in the possession of the Garda Síochána, or (b) taken under subsection (3), together with a copy of the record made under subsection (8), for transmission to the requesting authority.
\n
(10)When transmitting the identification evidence and record to the requesting authority the Central Authority shall, if subsection (1)(c)(i) does not apply and subject to subsection >(11), obtain an assurance that the evidence, as well as the record of any analysis of the evidence, or any other record relating to it, that may be made in the requesting state, will be destroyed— (a) if the person the subject of the investigation is not prosecuted, on the expiration of 12 months from the taking of the evidence, unless the failure to prosecute is not due to the fact that the person has absconded or cannot be found, (b) if the person is prosecuted and is acquitted or discharged or the proceedings are discontinued, on the expiration of 21 days thereafter, or (c) if the person is prosecuted and made subject to an order corresponding to or in the nature of a probation order under section 1
\n
(1)of the Probation of Offenders Act 1907 , on the expiration of a period of 3 years from the making of the order, unless the person is convicted during that period of an offence under the law of the country concerned corresponding to an arrestable offence.
\n
(11)The Minister may, at the request of the requesting authority and having consulted the Director of Public Prosecutions, direct that any period mentioned in subsection (10) be extended for good reason.
\n
(12)In this section— “arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment or of the common law, be punished by imprisonment for a term of 5 years or by a more severe penalty, and includes an attempt to commit any such offence; “consent” means consent in writing and a reference to the consent of a person is a reference to— (a) in the case of a person who has attained the age of 18 years, the consent of that person, (b) in the case of a person who has not attained the age of 18 years but has attained the age of 12 years, the consent of that person and of his or her parent or guardian, and (c) in the case of a child aged 10 or 11 years who is detained on suspicion of having committed an offence mentioned in subsection (2) of section 52 (restriction on criminal proceedings against children) of the Children Act 2001 , as substituted by section 129 of the Criminal Justice Act 2006 , the consent of his or her parent or guardian.
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PART 6
\n
Other Forms of Assistance
\n
Chapter 1
\n
Service of documents Documents for service outside State.
\n
80.— (1) A document may be issued by a court in the State for the purposes of or in connection with criminal proceedings notwithstanding that the person on whom it is to be served is in another state.
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(2)Where the document is not in the official language or one of the official languages of that state, the person at whose request it was issued shall provide the court with a translation of the document, or the material parts of it, into that language or one of those languages, unless subsection (3) applies.
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(3)Where such a person believes that the person on whom it is to be served does not understand Irish, English or another language which is the official language or one of the official languages of that state, he or she shall— (a) inform the court of that belief, and (b) provide it with a translation of the document, or of the material parts of it, into a language that he or she believes that the person understands.
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(4)The document— (a) if it requires the recipient to appear in proceedings, shall not refer to a penalty for non-appearance, and (b) shall be accompanied by— (i) a notice stating that— (I) no measure of restraint or punishment may be enforced directly by the court in the territory of the other state, and (II) the person to be served may obtain information regarding his or her rights or obligations concerning the document from the court or a specified person or authority, (ii) a notice giving any other information required to be given by rules of court, and (iii) where necessary, a translation of the document, or of the material parts of it, into an appropriate language.
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(5)Subject to subsection (6), non-compliance by a person with a requirement specified in the document is not contempt of court or a ground for issuing a warrant to compel the person to attend the proceedings concerned.
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(6)Subsection (5) does not apply if the document is subsequently served on the person in the State.
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(7)Subject to subsection (9), a person who is in the State in compliance with a requirement in the document to appear as a defendant in criminal proceedings may not be proceeded against, sentenced, detained or otherwise restricted in his or her personal freedom in respect of any offence committed before arriving in the State other than an offence or offences specified in the document.
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(8)Subject to subsection (9), a person who is in the State in compliance with a requirement in the document to appear as a witness in criminal proceedings may not be proceeded against, sentenced, detained or otherwise restricted in his or her personal freedom in respect of any offence committed before arriving in the State.
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(9)The immunity provided for in subsections (7) and (8) ceases when— (a) a period of 15 days has elapsed from the date when the person’s presence in the State is no longer required by the court concerned and the person, having had an opportunity to leave the State during that period, has not done so, or (b) the person, having left the State during that period, returns to it.
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Mode of service.
\n
81.— (1) A document referred to in section 80 may be served in a designated state by post.
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(2)Subject to subsection (3), it may be transmitted to a designated state with a request for service otherwise than by post in accordance with the relevant international instrument.
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(3)Where the person to be served is in a member state, service otherwise than by post may be requested only if— (a) the address of the person is unknown or uncertain, (b) it has not been possible to serve the document by post, or (c) the person at whose request the document was issued has good reason for believing that service by post would not be effective or is inappropriate.
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(4)Such a document may be served in a state other than a designated state in accordance with arrangements made by the Minister.
\n
Service of documents in State.
\n
82.— (1) This section applies to a request for service on a person in the State of— (a) a document requiring the person to appear as a defendant or attend as a witness in criminal proceedings in a designated state, and (b) any other document issued by a court or authority (including a prosecuting authority) in that state in criminal proceedings, including a document relating to the enforcement of a sentence or a preventive measure, the imposition of a fine or the payment of costs of proceedings.
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(2)Unless the request is for personal service, the Minister may cause the document, together with the notice referred to in subsection (11), to be served by post on the person concerned.
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(3)Where the request is for personal service, the document, if not in Irish or English, shall be accompanied— (a) by a translation of the document, or of the material parts of it, into either of those languages, and (b) if it is known that the person understands only another language or languages and the document is not in that language or one of those languages, by such a translation into that other language or one of those other languages.
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(4)Where the request is for personal service, the Minister shall, subject to subsection (5), direct the Commissioner of the Garda Síochána to cause the document to be served personally on the person concerned.
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(5)Subsection (4) does not apply to a request for personal service from a member state unless— (a) the address of the person concerned is unknown or uncertain, (b) under the law of the member state proof of service on the person is required, other than proof that can be obtained by post, (c) it has not been possible to serve the document by post, or (d) the applicant for the issue of the document or the issuing authority has good reason for believing that service by post would not be effective or is inappropriate.
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(6)The Commissioner shall— (a) cause the document, together with the notice referred to in subsection (11), to be served by a member of the Garda Síochána in accordance with the request and send proof of the service to the Minister for transmission to the requesting authority concerned, or (b) if it is not possible to effect service, cause the Minister to be notified accordingly, stating the reason for the non-service.
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(7)A person served under this section with a document is not under any obligation under the law of the State to comply with any requirement in it.
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(8)A document requiring a person to appear as a defendant in criminal proceedings in a designated state may not be served under this section unless an assurance is given by the requesting authority concerned that, if the person so appears, he or she will not, subject to subsection (10), be proceeded against, sentenced, detained or otherwise restricted in his or her personal freedom in that state in respect of any conduct taking place before his or her departure from the State, other than conduct constituting the offence or offences specified in the document.
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(9)A document requiring a person to attend as a witness in criminal proceedings in a designated state may not be served under this section unless an assurance is given by the requesting authority concerned that, if the person so attends, he or she will not, subject to subsection (10), be proceeded against, sentenced, detained or otherwise restricted in his or her personal freedom in that state in respect of any offence committed before his or her departure from the State.
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(10)The immunity provided for in subsections (8) and (9) ceases when— (a) a period of at least 15 days has elapsed from the date when the person’s presence in the designated state is no longer required by the judicial authorities concerned and the person, having had an opportunity to leave the designated state during that period, has not done so, or (b) the person, having left the state during that period, returns to it.
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(11)The notice to accompany a document served under this section shall— (a) state the content of subsection (7), (8) or (9), as appropriate, and subsection (10), (b) indicate that the person on whom the document is served may wish to seek advice as to the possible consequences of failure to comply with it under the law of the state where it was issued, and (c) indicate that under that law the person may not, as a defendant or witness, have the same rights and privileges as he or she would have in that capacity in criminal proceedings in the State.
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(12)If there is reason to believe that the person understands only a language or languages other than Irish or English, the notice shall be translated into that other language or one of those other languages.
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Chapter 2
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Examining objects and sites Examining objects and sites.
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83.— (1) A request for the examination of an object or site in a designated state for the purposes of a criminal investigation or criminal proceedings may be sent by the Director of Public Prosecutions either to the Central Authority for transmission to the appropriate authority in the designated state or directly to that authority.
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(2)A request from a designated state for the examination of an object or site for such purposes may be sent by the Minister to the Commissioner of the Garda Síochána to arrange for the request to be complied with.
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(3)A request under this section shall include a description of the object or site that is sufficient to enable it to be clearly identified.
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(4)
\n
Section 74
\n
shall apply and have effect in relation to such a request from a designated state with the modification that, where necessary, a warrant may be issued under subsection (8) of that section requiring the owner or occupier of the object or site to allow access to it by a member of the Garda Síochána and such other persons as may accompany the member for the purposes of the examination and with any other necessary modifications.
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(5)Subsection (4) is without prejudice to section 97 .
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Chapter 3
\n
Restitution Restitution of stolen property from designated state.
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84.— (1) An order under paragraph (i) of section 56 (orders for restitution) of the Criminal Justice (Theft and Fraud Offences) Act 2001 may be made by the court by or before which a person is convicted in relation to property in a designated state.
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(2)The return of property to its owner in accordance with such an order does not prejudice the rights of any bona fide third parties in relation to it.
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(3)The Central Authority, on the application of the person entitled under the order to recover the property, shall send a copy of the order to the person or body in the designated state appearing to it to have the function of dealing with a request for the restitution of the property concerned.
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(4)The request shall be accompanied by a document provided by the applicant containing— (a) a statement that— (i) a specified person obtained the property concerned by committing an offence under the law of the State, and (ii) the return of the property to its owner does not prejudice the rights of any bona fide third parties in relation to it, and (b) the following information: (i) a description of the property; (ii) its location; (iii) the name and address of its owner; and (iv) any other information likely to facilitate compliance with the request.
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Request to State for restitution of stolen property.
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85.— (1) This section applies to a request for property obtained by criminal means to be placed at the disposal of the requesting authority with a view to the return of the property to its owner.
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(2)The request shall be in writing and shall include or be accompanied by— (a) a statement that— (i) a specified person has obtained the property by committing an offence under the law of the requesting state, and (ii) the return of the property to its owner does not prejudice the rights of any bona fide third parties in relation to it, and (b) the following information: (i) a description of the property; (ii) its location; (iii) the name and address of its owner; and (iv) any other information likely to facilitate compliance with the request.
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Action on request.
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86.— (1) On receipt of the request the Minister may, if of opinion that the request complies with section 85 , cause an application to be made to the District Court for an order under section 87 in relation to the property.
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(2)The Court shall provide for notice of the application to be given to any person who appears to be or is affected by such an order unless the Court is satisfied that it is not reasonably possible to ascertain the person’s whereabouts.
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Order for restitution.
\n
87.— (1) On application by or on behalf of the Minister, the District Court may, if satisfied— (a) that sections 85 and 86
\n
(2)have been complied with, and (b) that the property concerned is in the possession or control of a specified person, order that person to deliver the property to the member in charge of the Garda Síochána station named in the application.
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(2)The Central Authority shall arrange for the delivery of the property to the requesting authority with a view to the return of the property to its owners.
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(3)An order may also be made by the District Court under this section for the delivery of property which is in the custody of the Garda Síochána.
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(4)An order under this section may not be made— (a) where the property is required as evidence in civil or criminal proceedings, or (b) unless an opportunity has been given to any person claiming to own, or have an interest in, the property to show cause why the order should not be made.
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(5)A person who does not comply with an order under this section is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
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(6)The jurisdiction of the District Court under this section may be exercised— (a) by the judge of that Court assigned to the district court district in which the property is located, or (b) if the property is located in more than one district court district, by a judge of that Court assigned to any one of those districts.
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Chapter 4
\n
Controlled deliveries Interpretation (Chapter 4).
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88.— (1) In this Chapter— “competent authority in a designated state”, in relation to a request for a controlled delivery to or from a designated state, means a person or body in that state appearing to the Competent Authority in the State to have the function of receiving or making the request; “Competent Authority in the State”, in relation to a request for a controlled delivery to or from a designated state, means— (a) the Commissioner of the Garda Síochána or a member of the Garda Síochána authorised by him or her for the time being to exercise his or her functions under this Chapter, or (b) if the controlled delivery is concerned with a revenue offence, the Revenue Commissioners or a person authorised by them for the time being to exercise their functions under this Chapter; “controlled delivery” means a delivery permitted in the State in accordance with this Chapter or in a designated state in accordance with the relevant international instrument for the purposes of an investigation into an offence; “controlled drug” has the meaning given to it by section 2 of the Misuse of Drugs Act 1977 ; “offence” includes an offence which is suspected, with reasonable cause, to have been or to be about to be committed.
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(2)Where the competent authority of a designated state requires requests under this Chapter to be received or made by a judicial authority, the requests shall be addressed to or made by the Minister, and for that purpose references in this Chapter to the Competent Authority in the State are to be construed as references to the Minister.
\n
Controlled delivery in designated state.
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89.— (1) The Competent Authority in the State may request the competent authority in a designated state to permit— (a) a controlled delivery to be made in that state, and (b) specified persons or persons of a specified description, including members of the Garda Síochána and officers of customs and excise, to participate in the operations connected with the delivery.
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(2)The request shall include particulars of the offence with which the controlled delivery is concerned.
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Controlled delivery in State.
\n
90.— (1) This section applies to a request to the Competent Authority in the State from a competent authority in a designated state to permit— (a) a controlled delivery to be made in the State, and (b) specified persons, or persons of a specified description, from the designated state to participate in the operations connected with the controlled delivery.
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(2)The request shall include particulars of the offence with which the controlled delivery is concerned.
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(3)The Competent Authority in the State may grant the request if satisfied that— (a) the controlled delivery is being made for the purposes of an investigation into an offence, or (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, to permit the delivery to take place.
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(4)The operations related to a controlled delivery shall, if the delivery is concerned with the illegal importation of controlled drugs, be regulated in accordance with— (a) the Memorandum of Understanding of 12 January 1996 concerning the relationship between the Customs and Excise Service of the Revenue Commissioners and the Garda Síochána with respect to Drugs Law Enforcement and agreed between the Commissioner of the Garda Síochána and the chairman of the Revenue Commissioners, and (b) the Operational Protocol for co-operation between An Garda Síochána, the Customs and Excise and the Naval Service in relation to Drugs Law Enforcement, including any modifications or extensions of the Memorandum or Protocol for the time being in force.
\n
(5)If the delivery is concerned with a revenue offence (other than an offence constituted by the illegal importation of controlled drugs), the operations shall be under the direction and control of the officers of customs and excise assigned to the delivery.
\n
(6)If the delivery is concerned with any other offence, the operations shall be under the direction and control of the members of the Garda Síochána so assigned.
\n
(7)A member of the Garda Síochána or officer of customs and excise participating in operations connected with a controlled delivery in the State may, at the request of a person from a designated state so participating, take such action as may be open to the member or officer in furtherance of the operations.
\n
(8)Copies of the Memorandum of Understanding and Operational Protocol have been placed in the Oireachtas Library.
\n
Amendment of Garda Síochána Act 2005.
\n
91.— Section 51 (international service) of the Garda Síochána Act 2005 is amended— (a) in subsection (2)(a), by the deletion of “State, or” and the substitution of “State,”, and (b) by the substitution of the following subsections for subsections (b) and (c): “(b) as members of a joint investigation team within the meaning of the Criminal Justice (Joint Investigation Teams) Act 2004 , as amended by section 96 of the Criminal Justice (Mutual Assistance) Act 2008, (c) in connection with the making of a controlled delivery outside the State pursuant to a request under section 89 of the said Act of 2008, or (d) on secondment to an international organisation with the consent of the Minister.”.
\n
Application of Criminal Justice (Joint Investigation Teams) Act 2004 in relation to controlled deliveries.
\n
92.— Sections 11 (use of information), 12 (criminal liability) and 13 (civil liability) of the Criminal Justice (Joint Investigation Teams) Act 2004 apply, with the necessary modifications, in relation to a person participating in operations connected with a controlled delivery as they apply in relation to a member or seconded member of a joint investigation team within the meaning of that Act.
\n
PART 7
\n
Mutual Assistance in Criminal Matters Between the State and the United States of America Definitions (Part 7).
\n
93.— In this Part— “Article” means an Article of the Ireland-US Treaty; “Explanatory Note” means the Explanatory Note which— (a) is annexed to the Council Decision of 6 June 2003 concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual assistance in criminal matters, and (b) records an understanding between the European Union and the United States of America on the EU - US Agreement; “Instrument” means the Instrument contemplated by Article 3(2) of the EU - US Agreement as to the application of the US - Ireland Treaty and done at Dublin on 14 July 2005; “EU - US Agreement” means the Agreement on Mutual Legal Assistance between the European Union and the United States of America, done at Washington D.C. on 25 June 2003; “Ireland - US Treaty” means the Treaty between the Government of Ireland and the Government of the United States of America on Mutual Assistance in Criminal Matters, done at Washington D.C. on 18 January 2001, as applied by the Instrument.
\n
Application in State of Ireland - US Treaty.
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94.— (1) The Ireland - US Treaty has the force of law in its application in relation to the State.
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(2)Judicial notice shall be taken of the Treaty.
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(3)For the purpose of giving full effect to the Treaty, the relevant provisions of this Act relating to requests for mutual legal assistance between the State and member states, including those relating to applications to courts or judges— (a) to make orders to give effect to or enforce compliance with requests for such assistance, and (b) to make, vary or discharge those orders, have also effect, subject to the Treaty, in relation to requests for mutual legal assistance between the State and the United States of America, where necessary for that purpose and with the necessary modifications; in particular, for that purpose the reference in Article 16 bis 4 to money laundering and terrorist activity include, respectively, an offence under section 31 of the Criminal Justice Act 1994 , as substituted by section 21 of the Criminal Justice (Theft and Fraud Offences) Act 2001 , and an offence under section 6 of the Criminal Justice (Terrorist Offences) Act 2005 .
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(4)Section 7 (operation of joint investigation teams) of the Criminal Justice (Joint Investigation Teams) Act 2004 applies in relation to a joint investigation team established under Article 16 ter and operating in the State as if it were a joint investigation team established under that Act.
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(5)Article 7, in its application in relation to the use of personal data contained in evidence or information obtained under the Treaty by a person in the State, 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.
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(6)The Data Protection Acts 1988 and 2003 apply in relation to such data in respects other than those related to their use.
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(7)A court may consider— (a) the Explanatory Note when interpreting any provision of the EU - US Agreement, and (b) the Note and Agreement when interpreting any provision of the Treaty, and give them such weight as is appropriate in the circumstances.
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PART 8
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Miscellaneous Exchange of information concerning terrorist offences between Europol, Eurojust and member states.
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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.
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(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.
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Application and amendment of Criminal Justice (Joint Investigation Teams) Act 2004.
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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).
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(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).
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Presence of representatives of requesting state at execution of request.
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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.
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(2)Such an authorisation may be subject to such conditions as the Minister may determine.
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(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.
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(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.
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(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.
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Presence of members of Garda Síochána at execution of request in designated state.
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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.
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Use of information or evidence obtained in response to request in designated state.
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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.
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Disclosure prejudicing investigation.
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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.
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(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.
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(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.
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Liability of officers of body corporate.
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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.
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(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.
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(3)Subsections (1) and (2) apply, with the necessary modifications, in relation to offences under this Act committed by an unincorporated body.
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Evidence in proceedings (general).
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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.
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(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.
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(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
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(8), 73
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(8)or 77
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(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.
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(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.
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(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.
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(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.
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Provisional measures.
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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.
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(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.
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(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.
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(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.
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Recognition of third party rights.
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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.
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(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).
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Amendment of Criminal Justice Act 1994.
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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.
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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.
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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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.”.
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Amendment of section 8(7) of Criminal Assets Bureau Act 1996.
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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”.
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Personal data protection.
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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.
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(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.
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(3)The Data Protection Acts 1988 and 2003 apply in relation to such data in respects other than those relating to their use.
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Exercise of powers by judge of District Court outside district court district.
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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
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(8), 75
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(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.
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Regulations.
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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 .
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(2)Regulations under this section may include such consequential, incidental, transitional or supplementary provisions as may be necessary for that purpose.
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Expenses.
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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.
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Laying of orders or regulations before Houses of Oireachtas.
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111.— An order (other than an order under section 1
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(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.
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SCHEDULE 1 Text of 2000 Convention
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Section 2
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(6).
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THE HIGH CONTRACTING PARTIES to this Convention, Member States of the European Union, REFERRING to the Council Act establishing the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, WISHING to improve judicial cooperation in criminal matters between the Member States of the Union, without prejudice to the rules protecting individual freedom, POINTING OUT the Member States’ common interest in ensuring that mutual assistance between the Member States is provided in a fast and efficient manner compatible with the basic principles of their national law, and in compliance with the individual rights and principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, EXPRESSING their confidence in the structure and functioning of their legal systems and in the ability of all Member States to guarantee a fair trial, RESOLVED to supplement the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and other Conventions in force in this area, by a Convention of the European Union, RECOGNISING that the provisions of those Conventions remain applicable for all matters not covered by this Convention, CONSIDERING that the Member States attach importance to strengthening judicial cooperation, while continuing to apply the principle of proportionality, RECALLING that this Convention regulates mutual assistance in criminal matters, based on the principles of the Convention of 20 April 1959, WHEREAS, however, Article 20 of this Convention covers certain specific situations concerning interception of telecommunications, without having any implications with regard to other such situations outside the scope of the Convention, WHEREAS the general principles of international law apply in situations which are not covered by this Convention, RECOGNISING that this Convention does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security, and that it is a matter for each Member State to determine, in accordance with Article 33 of the Treaty on European Union, under which conditions it will maintain law and order and safeguard internal security, HAVE AGREED ON THE FOLLOWING PROVISIONS:
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TITLE I
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GENERAL PROVISIONS
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Article 1Relationship to other conventions on mutual assistance
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1.The purpose of this Convention is to supplement the provisions and facilitate the application between the Member States of the European Union, of: (a) the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, hereinafter referred to as the ‘European Mutual Assistance Convention’; (b) the Additional Protocol of 17 March 1978 to the European Mutual Assistance Convention; (c) the provisions on mutual assistance in criminal matters of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders (hereinafter referred to as the ‘Schengen Implementation Convention’) which are not repealed pursuant to Article 2(2); (d) Chapter 2 of the Treaty on Extradition and Mutual Assistance in Criminal Matters between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands of 27 June 1962, as amended by the Protocol of 11 May 1974, (hereinafter referred to as the ‘Benelux Treaty’), in the context of relations between the Member States of the Benelux Economic Union.
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2.This Convention shall not affect the application of more favourable provisions in bilateral or multilateral agreements between Member States or, as provided for in Article 26(4) of the European Mutual Assistance Convention, arrangements in the field of mutual assistance in criminal matters agreed on the basis of uniform legislation or of a special system providing for the reciprocal application of measures of mutual assistance in their respective territories.
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Article 2Provisions relating to the Schengen acquis
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1.The provisions of Articles 3, 5, 6, 7, 12 and 23 and, to the extent relevant to Article 12, of Articles 15 and 16, to the extent relevant to the Articles referred to, of Article 1 constitute measures amending or building upon the provisions referred to in Annex A to the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis.
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2.The provisions of Articles 49(a), 52, 53 and 73 of the Schengen Implementation Convention are hereby repealed.
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Article 3Proceedings in connection with which mutual assistance is also to be afforded
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1.Mutual assistance shall also be afforded in proceedings brought by the administrative authorities in respect of acts which are punishable under the national law of the requesting or the requested Member State, or both, 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.
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2.Mutual assistance shall also be afforded in connection with criminal proceedings and proceedings as referred to in paragraph 1 which relate to offences or infringements for which a legal person may be held liable in the requesting Member State.
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Article 4Formalities and procedures in the execution of requests for mutual assistance
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1.Where mutual assistance is afforded, the requested Member State shall comply with the formalities and procedures expressly indicated by the requesting Member State, unless otherwise provided in this Convention and provided that such formalities and procedures are not contrary to the fundamental principles of law in the requested Member State.
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2.The requested Member State shall execute the request for assistance as soon as possible, taking as full account as possible of the procedural deadlines and other deadlines indicated by the requesting Member State. The requesting Member State shall explain the reasons for the deadline.
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3.If the request cannot, or cannot fully, be executed in accordance with the requirements set by the requesting Member State, the authorities of the requested Member State shall promptly inform the authorities of the requesting Member State and indicate the conditions under which it might be possible to execute the request. The authorities of the requesting and the requested Member State may subsequently agree on further action to be taken concerning the request, where necessary by making such action subject to the fulfilment of those conditions.
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4.If it is foreseeable that the deadline set by the requesting Member State for executing its request cannot be met, and if the reasons referred to in paragraph 2, second sentence, indicate explicitly that any delay will lead to substantial impairment of the proceedings being conducted in the requesting Member State, the authorities of the requested Member State shall promptly indicate the estimated time needed for execution of the request. The authorities of the requesting Member State shall promptly indicate whether the request is to be upheld nonetheless. The authorities of the requesting and requested Member States may subsequently agree on further action to be taken concerning the request.
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Article 5Sending and service of procedural documents
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1.Each Member State shall send procedural documents intended for persons who are in the territory of another Member State to them directly by post.
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2.Procedural documents may be sent via the competent authorities of the requested Member State only if: (a) the address of the person for whom the document is intended is unknown or uncertain; or (b) the relevant procedural law of the requesting Member State requires proof of service of the document on the addressee, other than proof that can be obtained by post; or (c) it has not been possible to serve the document by post; or (d) the requesting Member State has justified reasons for considering that dispatch by post will be ineffective or is inappropriate.
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3.Where there is reason to believe that the addressee does not understand the language in which the document is drawn up, the document, or at least the important passages thereof, must be translated into (one of) the language(s) of the Member State in the territory of which the addressee is staying. If the authority by which the procedural document was issued knows that the addressee understands only some other language, the document, or at least the important passages thereof, must be translated into that other language.
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4.All procedural documents shall be accompanied by a report stating that the addressee may obtain information from the authority by which the document was issued or from other authorities in that Member State regarding his or her rights and obligations concerning the document. Paragraph 3 shall also apply to that report.
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5.This Article shall not affect the application of Articles 8, 9 and 12 of the European Mutual Assistance Convention and Articles 32, 34 and 35 of the Benelux Treaty.
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Article 6Transmission of requests for mutual assistance
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1.Requests for mutual assistance and spontaneous exchanges of information referred to in Article 7 shall be made in writing, or by any means capable of producing a written record under conditions allowing the receiving Member State to establish authenticity. Such requests shall be made directly between judicial authorities with territorial competence for initiating and executing them, and shall be returned through the same channels unless otherwise specified in this Article. Any information laid by a Member State with a view to proceedings before the courts of another Member State within the meaning of Article 21 of the European Mutual Assistance Convention and Article 42 of the Benelux Treaty may be the subject of direct communications between the competent judicial authorities.
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2.Paragraph 1 shall not prejudice the possibility of requests being sent or returned in specific cases: (a) between a central authority of a Member State and a central authority of another Member State; or (b) between a judicial authority of one Member State and a central authority of another Member State.
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3.Notwithstanding paragraph 1, the United Kingdom and Ireland, respectively, may, when giving the notification provided for in Article 27(2), declare that requests and communications to it, as specified in the declaration, must be sent via its central authority. These Member States may at any time by a further declaration limit the scope of such a declaration for the purpose of giving greater effect to paragraph 1. They shall do so when the provisions on mutual assistance of the Schengen Implementation Convention are put into effect for them. Any Member State may apply the principle of reciprocity in relation to the declarations referred to above.
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4.Any request for mutual assistance may, in case of urgency, be made via the International Criminal Police Organisation (Interpol) or any body competent under provisions adopted pursuant to the Treaty on European Union.
\n
5.Where, in respect of requests pursuant to Articles 12, 13 or 14, the competent authority is a judicial authority or a central authority in one Member State and a police or customs authority in the other Member State, requests may be made and answered directly between these authorities. Paragraph 4 shall apply to these contacts.
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6.Where, in respect of requests for mutual assistance in relation to proceedings as envisaged in Article 3(1), the competent authority is a judicial authority or a central authority in one Member State and an administrative authority in the other Member State, requests may be made and answered directly between these authorities.
\n
7.Any Member State may declare, when giving the notification provided for in Article 27(2), that it is not bound by the first sentence of paragraph 5 or by paragraph 6 of this Article, or both or that it will apply those provisions only under certain conditions which it shall specify. Such a declaration may be withdrawn or amended at any time.
\n
8.The following requests or communications shall be made through the central authorities of the Member States: (a) requests for temporary transfer or transit of persons held in custody as referred to in Article 9 of this Convention, in Article 11 of the European Mutual Assistance Convention and in Article 33 of the Benelux Treaty; (b) notices of information from judicial records as referred to in Article 22 of the European Mutual Assistance Convention and Article 43 of the Benelux Treaty. However, requests for copies of convictions and measures as referred to in Article 4 of the Additional Protocol to the European Mutual Assistance Convention may be made directly to the competent authorities.
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Article 7Spontaneous exchange of information
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1.Within the limits of their national law, the competent authorities of the Member States may exchange information, without a request to that effect, relating to criminal offences and the infringements of rules of law referred to in Article 3(1), the punishment or handling of which falls within the competence of the receiving authority at the time the information is provided.
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2.The providing authority may, pursuant to its national law, impose conditions on the use of such information by the receiving authority.
\n
3.The receiving authority shall be bound by those conditions.
\n
TITLE II
\n
REQUEST FOR CERTAIN SPECIFIC FORMS OF MUTUAL ASSISTANCE
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Article 8Restitution
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1.At the request of the requesting Member State and without prejudice to the rights of bona fide third parties, the requested Member State may place articles obtained by criminal means at the disposal of the requesting State with a view to their return to their rightful owners.
\n
2.In applying Articles 3 and 6 of the European Mutual Assistance Convention and Articles 24(2) and 29 of the Benelux Treaty, the requested Member State may waive the return of articles either before or after handing them over to the requesting Member State if the restitution of such articles to the rightful owner may be facilitated thereby. The rights of bona fide third parties shall not be affected.
\n
3.In the event of a waiver before handing over the articles to the requesting Member State, the requested Member State shall exercise no security right or other right of recourse under tax or customs legislation in respect of these articles.
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A waiver as referred to in paragraph 2 shall be without prejudice to the right of the requested Member State to collect taxes or duties from the rightful owner.
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Article 9Temporary transfer of persons held in custody for purpose of investigation
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1.Where there is agreement between the competent authorities of the Member States concerned, a Member State which has requested an investigation for which the presence of the person held in custody on its own territory is required may temporarily transfer that person to the territory of the Member State in which the investigation is to take place.
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2.The agreement shall cover the arrangements for the temporary transfer of the person and the date by which he or she must be returned to the territory of the requesting Member State.
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3.Where consent to the transfer is required from the person concerned, a statement of consent or a copy thereof shall be provided promptly to the requested Member State.
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4.The period of custody in the territory of the requested Member State shall be deducted from the period of detention which the person concerned is or will be obliged to undergo in the territory of the requesting Member State.
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5.The provisions of Articles 11(2) and (3), 12 and 20 of the European Mutual Assistance Convention shall apply mutatis mutandis to this Article.
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6.When giving the notification provided for in Article 27(2), each Member State may declare that, before an agreement is reached under paragraph 1 of this Article, the consent referred to in paragraph 3 of this Article will be required or will be required under certain conditions indicated in the declaration.
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Article 10Hearing by videoconference
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1.If a person is in one Member State’s territory and has to be heard as a witness or expert by the judicial authorities of another Member State, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request that the hearing take place by videoconference, as provided for in paragraphs 2 to 8.
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2.The requested Member State shall agree to the hearing by videoconference provided that the use of the videoconference is not contrary to fundamental principles of its law and on condition that it has the technical means to carry out the hearing. If the requested Member State has no access to the technical means for videoconferencing, such means may be made available to it by the requesting Member State by mutual agreement.
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3.Requests for a hearing by videoconference shall contain, in addition to the information referred to in Article 14 of the European Mutual Assistance Convention and Article 37 of the Benelux Treaty, the reason why it is not desirable or possible for the witness or expert to attend in person, the name of the judicial authority and of the persons who will be conducting the hearing.
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4.The judicial authority of the requested Member State shall summon the person concerned to appear in accordance with the forms laid down by its law.
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5.With reference to hearing by videoconference, the following rules shall apply: (a) a judicial authority of the requested Member State shall be present during the hearing, where necessary assisted by an interpreter, and shall also be responsible for ensuring both the identification of the person to be heard and respect for the fundamental principles of the law of the requested Member State. If the judicial authority of the requested Member State is of the view that during the hearing the fundamental principles of the law of the requested Member State are being infringed, it shall immediately take the necessary measures to ensure that the hearing continues in accordance with the said principles; (b) measures for the protection of the person to be heard shall be agreed, where necessary, between the competent authorities of the requesting and the requested Member States; (c) the hearing shall be conducted directly by, or under the direction of, the judicial authority of the requesting Member State in accordance with its own laws; (d) at the request of the requesting Member State or the person to be heard the requested Member State shall ensure that the person to be heard is assisted by an interpreter, if necessary; (e) the person to be heard may claim the right not to testify which would accrue to him or her under the law of either the requested or the requesting Member State.
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6.Without prejudice to any measures agreed for the protection of the persons, the judicial authority of the requested Member State shall on the conclusion of the hearing draw up minutes indicating the date and place of the hearing, the identity of the person heard, the identities and functions of all other persons in the requested Member State participating in the hearing, any oaths taken and the technical conditions under which the hearing took place. The document shall be forwarded by the competent authority of the requested Member State to the competent authority of the requesting Member State.
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7.The cost of establishing the video link, costs related to the servicing of the video link in the requested Member State, the remuneration of interpreters provided by it and allowances to witnesses and experts and their travelling expenses in the requested Member State shall be refunded by the requesting Member State to the requested Member State, unless the latter waives the refunding of all or some of these expenses.
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8.Each Member State shall take the necessary measures to ensure that, where witnesses or experts are being heard within its territory in accordance with this Article and refuse to testify when under an obligation to testify or do not testify according to the truth, its national law applies in the same way as if the hearing took place in a national procedure.
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9.Member States may at their discretion also apply the provisions of this Article, where appropriate and with the agreement of their competent judicial authorities, to hearings by videoconference involving an accused person. In this case, the decision to hold the videoconference, and the manner in which the videoconference shall be carried out, shall be subject to agreement between the Member States concerned, in accordance with their national law and relevant international instruments, including the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.
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Any Member State may, when giving its notification pursuant to Article 27(2), declare that it will not apply the first subparagraph. Such a declaration may be withdrawn at any time. Hearings shall only be carried out with the consent of the accused person. Such rules as may prove to be necessary, with a view to the protection of the rights of accused persons, shall be adopted by the Council in a legally binding instrument.
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Article 11Hearing of witnesses and experts by telephone conference
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1.If a person is in one Member State’s territory and has to be heard as a witness or expert by judicial authorities of another Member State, the latter may, where its national law so provides, request assistance of the former Member State to enable the hearing to take place by telephone conference, as provided for in paragraphs 2 to 5.
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2.A hearing may be conducted by telephone conference only if the witness or expert agrees that the hearing take place by that method.
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3.The requested Member State shall agree to the hearing by telephone conference where this is not contrary to fundamental principles of its law.
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4.A request for a hearing by telephone conference shall contain, in addition to the information referred to in Article 14 of the European Mutual Assistance Convention and Article 37 of the Benelux Treaty, the name of the judicial authority and of the persons who will be conducting the hearing and an indication that the witness or expert is willing to take part in a hearing by telephone conference.
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5.The practical arrangements regarding the hearing shall be agreed between the Member States concerned.
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When agreeing such arrangements, the requested Member State shall undertake to: (a) notify the witness or expert concerned of the time and the venue of the hearing; (b) ensure the identification of the witness or expert; (c) verify that the witness or expert agrees to the hearing by telephone conference.
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The requested Member State may make its agreement subject, fully or in part, to the relevant provisions of Article 10(5) and (8). Unless otherwise agreed, the provisions of Article 10(7) shall apply mutatis mutandis.
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Article 12Controlled deliveries
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1.Each Member State shall undertake to ensure that, at the request of another Member State, controlled deliveries may be permitted on its territory in the framework of criminal investigations into extraditable offences.
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2.The decision to carry out controlled deliveries shall be taken in each individual case by the competent authorities of the requested Member State, with due regard for the national law of that Member State.
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3.Controlled deliveries shall take place in accordance with the procedures of the requested Member State. The right to act and to direct and control operations shall lie with the competent authorities of that Member State.
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Article 13Joint investigation teams
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1.By mutual agreement, the competent authorities of two or more Member States may set up a joint investigation team for a specific purpose and a limited period, which may be extended by mutual consent, to carry out criminal investigations in one or more of the Member States setting up the team. The composition of the team shall be set out in the agreement.
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A joint investigation team may, in particular, be set up where: (a) a Member State’s investigations into criminal offences require difficult and demanding investigations having links with other Member States; (b) a number of Member States are conducting investigations into criminal offences in which the circumstances of the case necessitate coordinated, concerted action in the Member States involved.
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A request for the setting up of a joint investigation team may be made by any of the Member States concerned. The team shall be set up in one of the Member States in which the investigations are expected to be carried out.
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2.In addition to the information referred to in the relevant provisions of Article 14 of the European Mutual Assistance Convention and Article 37 of the Benelux Treaty, requests for the setting up of a joint investigation team shall include proposals for the composition of the team.
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3.A joint investigation team shall operate in the territory of the Member States setting up the team under the following general conditions: (a) the leader of the team shall be a representative of the competent authority participating in criminal investigations from the Member State in which the team operates. The leader of the team shall act within the limits of his or her competence under national law; (b) the team shall carry out its operations in accordance with the law of the Member State in which it operates. The members of the team shall carry out their tasks under the leadership of the person referred to in subparagraph (a), taking into account the conditions set by their own authorities in the agreement on setting up the team; (c) the Member State in which the team operates shall make the necessary organisational arrangements for it to do so.
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4.In this Article, members of the joint investigation team from Member States other than the Member State in which the team operates are referred to as being ‘seconded’ to the team.
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5.Seconded members of the joint investigation team shall be entitled to be present when investigative measures are taken in the Member State of operation. However, the leader of the team may, for particular reasons, in accordance with the law of the Member State where the team operates, decide otherwise.
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6.Seconded members of the joint investigation team may, in accordance with the law of the Member State where the team operates, be entrusted by the leader of the team with the task of taking certain investigative measures where this has been approved by the competent authorities of the Member State of operation and the seconding Member State.
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7.Where the joint investigation team needs investigative measures to be taken in one of the Member States setting up the team, members seconded to the team by that Member State may request their own competent authorities to take those measures. Those measures shall be considered in that Member State under the conditions which would apply if they were requested in a national investigation.
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8.Where the joint investigation team needs assistance from a Member State other than those which have set up the team, or from a third State, the request for assistance may be made by the competent authorities of the State of operations to the competent authorities of the other State concerned in accordance with the relevant instruments or arrangements.