(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 27, 27A or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990 , the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
\n
(9)In proceedings for an offence under this section it is a good defence for the defendant to show that he or she had the firearm or imitation firearm for a lawful purpose when doing the act alleged to constitute the offence under subsection (1) of the said section 112.
\n
(10)Section 27C of this Act applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed under subsection (4) or (8) of this section in those proceedings.”.
\n
Substitution of section 27 of Firearms Act 1964.
\n
58.— The following section is substituted for section 27 of the Firearms Act 1964 : “Prohibition of use of firearms to assist or aid escape.
\n
27.—(1) A person shall not use or produce a firearm or imitation firearm— (a) for the purpose of or while resisting the arrest of the person or of another person by a member of the Garda Síochána, or (b) for the purpose of aiding, or in the course of, the escape or rescue of the person or of another person from lawful custody.
\n
(2)A person who contravenes subsection (1) of this section is guilty of an offence and liable on conviction on indictment— (a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and (b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
\n
(3)The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 .
\n
(4)Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 10 years as the minimum term of imprisonment to be served by the person.
\n
(5)Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or to the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including— (a) whether the person pleaded guilty to the offence and, if so— (i) the stage at which the intention to plead guilty was indicated, and (ii) the circumstances in which the indication was given, and (b) whether the person materially assisted in the investigation of the offence.
\n
(6)The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to— (a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 , and (b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
\n
(7)Subsections (4) to (6) of this section apply and have effect only in relation to a person convicted of a first offence under this section (other than a person who falls under subsection (8)(b) of this section), and accordingly references in those first-mentioned subsections to an offence under this section are to be construed as references to a first such offence.
\n
(8)Where a person (except a person under the age of 18 years)— (a) is convicted of a second or subsequent offence under this section, (b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27A or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990 , the court shall, in imposing sentence, specify a term of imprisonment of not less than 10 years as the minimum term of imprisonment to be served by the person.
\n
(9)Section 27C of this Act applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed under subsection (4) or (8) of this section in those proceedings.”.
\n
Substitution of section 27A of Firearms Act 1964.
\n
59.— The following section is substituted for section 27A of the Firearms Act 1964 : “Possession of firearm or ammunition in suspicious circumstances.
\n
27A.—(1) It is an offence for a person to possess or control a firearm in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose.
\n
(2)A person guilty of an offence under this section is liable on conviction on indictment— (a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and (b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
\n
(3)The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 .
\n
(4)Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
\n
(5)Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including— (a) whether the person pleaded guilty to the offence and, if so— (i) the stage at which the intention to plead guilty was indicated, and (ii) the circumstances in which the indication was given, and (b) whether the person materially assisted in the investigation of the offence.
\n
(6)The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may have regard, in particular, to— (a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 , and (b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
\n
(7)Subsections (4) to (6) of this section apply and have effect only in relation to a person convicted of a first offence under this section (other than a person who falls under subsection (8)(b) of this section), and accordingly references in those first-mentioned subsections to an offence under this section are to be construed as references to a first such offence.
\n
(8)Where a person (except a person under the age of 18 years)— (a) is convicted of a second or subsequent offence under this section, (b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990 , the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
\n
(9)Section 27C of this Act applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed under subsection (4) or (8) of this section in those proceedings.
\n
(10)In the application of section 2 of the Criminal Law (Jurisdiction) Act 1976 to this section, it shall be presumed, unless the contrary is shown, that a purpose that is unlawful in the State is unlawful in Northern Ireland.”.
\n
Substitution of section 27B of Firearms Act 1964.
\n
60.— The following section is substituted for section 27B of the Firearms Act 1964 : “Carrying firearm with criminal intent.
\n
27B.—(1) It is an offence for a person to have with him or her a firearm, or an imitation firearm, with intent— (a) to commit an indictable offence, or (b) to resist or prevent the arrest of the person or another person, in either case while the person has the firearm or imitation firearm with him or her.
\n
(2)A person guilty of an offence under this section is liable on conviction on indictment— (a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and (b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
\n
(3)The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 .
\n
(4)Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
\n
(5)Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including— (a) whether the person pleaded guilty to the offence and, if so— (i) the stage at which the intention to plead guilty was indicated, and (ii) the circumstances in which the indication was given, and (b) whether the person materially assisted in the investigation of the offence.
\n
(6)The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may also have regard, in particular, to— (a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 , and (b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
\n
(7)Subsections (4) to (6) of this section apply and have effect only in relation to a person convicted of a first offence under this section (other than a person who falls under subsection (8)(b) of this section), and accordingly references in those first-mentioned subsections to an offence under this section are to be construed as references to a first such offence.
\n
(8)Where a person (except a person under the age of 18 years)— (a) is convicted of a second or subsequent offence under this section, (b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27A of this Act or section 12A of the Firearms and Offensive Weapons Act 1990 , the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
\n
(9)In proceedings for an offence under this section proof that the accused had a firearm or imitation firearm with him or her and intended to commit an indictable offence or to resist or prevent arrest is evidence that the accused intended to have it with him or her while doing so.
\n
(10)Section 27C of this Act applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed under subsection (4) or (8) of this section in those proceedings.”.
\n
New section 27C in Firearms Act 1964.
\n
61.— The following section is inserted in the Firearms Act 1964 after section 27B: “Provisions relating to minimum sentences under Firearms Acts 1925 to 2006.
\n
27C.—(1) In this section, “ minimum term of imprisonment” means a term specified by a court under— (a) section 15 of the Principal Act, (b) section 26, 27, 27A or 27B of this Act, and (c) section 12A of the Firearms and Offensive Weapons Act 1990 , less any reduction in the period of imprisonment under subsection (3) of this section.
\n
(2)The power to commute or remit punishment conferred by section 23 of the Criminal Justice Act 1951 does not apply in relation to a minimum term of imprisonment.
\n
(3)The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct apply in relation to a person serving such a minimum term.
\n
(4)Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960 , as applied by section 4 of the Prisons Act 1970 , to release temporarily a person serving a sentence of imprisonment shall not be exercised during a minimum term of imprisonment, unless for grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by that reason.”.
\n
Amendment of Criminal Justice Act 1984 Amendment of section 15 of Criminal Justice Act 1984.
\n
62.—
\n
Section 15
\n
of the Criminal Justice Act 1984 is amended by the substitution of “€2,500” for “£1,000”.
\n
Amendment of Firearms and Offensive Weapons Act 1990 Amendment of Firearms and Offensive Weapons Act 1990.
\n
63.— The Firearms and Offensive Weapons Act 1990 is amended— (a) by the repeal of section 4, (b) in section 6(1), by the substitution of “paragraph (f) of the definition of “firearm” in section 1(1) of the Principal Act” for “section 4(1)(f)”, and (c) in section 7(8), by the substitution of “paragraph (g)(ii) of the definition of “firearm” in section 1(1) of the Principal Act” for “section 4(1)(g)”.
\n
New section 8A of Firearms and Offensive Weapons Act 1990.
\n
64.— The following section is inserted after section 8 of the Firearms and Offensive Weapons Act 1990 : “Other amendments to Firearms Acts.
\n
8A.— Each provision of the Firearms Acts 1925 to 2006 specified in Schedule 1 to the Criminal Justice Act 2006 is amended in the manner specified in the third and fourth columns opposite the mention of that provision in the first column of that Schedule.”.
\n
New section 12A in Firearms and Offensive Weapons Act 1990.
\n
65.— The following section is inserted after section 12 of the Firearms and Offensive Weapons Act 1990 : “Shortening barrel of shot-gun or rifle.
\n
12A.—(1) Subject to subsection (2), a person who shortens the barrel of— (a) a shot-gun to a length of less than 61 centimetres, or (b) a rifle to a length of less than 50 centimetres, is guilty of an offence.
\n
(2)It is not an offence under subsection (1) for a registered firearms dealer to shorten the barrel of a shot-gun or rifle to a length of less than 61 or 50 centimetres respectively if the sole purpose of doing so is to replace a defective part of the barrel with a barrel of not less than 61 or 50 centimetres, as the case may be.
\n
(3)It is an offence for a person to convert into a firearm anything which resembles a firearm but is not capable of discharging a projectile.
\n
(4)Subject to subsection (5), it is an offence to modify a firearm so as to render its reloading mechanism fully automatic or to increase its calibre, irrespective of whether the firearm, as so modified, is a restricted firearm.
\n
(5)Subsection (4) does not apply to a firearm designed and manufactured so as to enable barrels of different calibres to be attached to it.
\n
(6)It is an offence for a person (except a registered firearms dealer) to possess without lawful authority or reasonable excuse— (a) a shot-gun the barrel of which is less than 61 centimetres in length, (b) a rifle the barrel of which is less than 50 centimetres in length, (c) a converted firearm mentioned in subsection (3), or (d) a firearm which has been modified as described in subsection (4).
\n
(7)A person who is guilty of an offence under this section is liable on conviction on indictment— (a) to imprisonment for a term not exceeding 10 years or such shorter term as the court may determine, subject to subsections (9) to (11) of this section or, where subsection (13) of this section applies, to that subsection, and (b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
\n
(8)The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 .
\n
(9)Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years (in this section referred to as the “minimum term of imprisonment”) as the minimum term of imprisonment to be served by the person.
\n
(10)Subsection (9) does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or to the person convicted of it, which would make the minimum term of imprisonment unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including— (a) whether the person pleaded guilty to the offence and, if so— (i) the stage at which the intention to plead guilty was indicated, and (ii) the circumstances in which the indication was given, and (b) whether the person materially assisted in the investigation of the offence.
\n
(11)The court, in considering for the purposes of subsection (10) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may have regard, in particular, to— (a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 , and (b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
\n
(12)Subsections (9) to (11) of this section apply and have effect only in relation to a person convicted of a first offence under this section (other than a person who falls under subsection (13)(b) of this section), and accordingly references in those first-mentioned subsections to an offence under this section are to be construed as references to a first such offence.
\n
(13)Where a person (except a person under the age of 18 years)— (a) is convicted of a second or subsequent offence under this section, (b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act or section 26, 27A or 27B of the Firearms Act 1964 , the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
\n
(14)Section 27C of the Firearms Act 1964 applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed under subsection (9) or (13) in those proceedings.”.
\n
Amendment of section 1 of Firearms (Firearm Certificates for Non-Residents) Act 2000.
\n
66.—
\n
Section 1
\n
of the Firearms (Firearm Certificates for Non-Residents) Act 2000 is amended— (a) by the insertion of the following definition after the definition of “the Act of 1976”— “ “ Commissioner” means the Commissioner of the Garda Síochána or a member of the Garda Síochána, or members of a particular rank in the Garda Síochána, not below the rank of superintendent appointed in writing by the Commissioner for the purpose of performing any of the Commissioner’s functions under this Act;”, and (b) by the insertion of the following definition after the definition of “the Principal Act”: “ “ restricted firearm” means a firearm which is declared under section 2B(a) of the Principal Act to be a restricted firearm;”.
\n
Amendment of section 2 of Firearms (Firearm Certificates for Non-Residents) Act 2000.
\n
67.—
\n
Section 2
\n
of the Firearms (Firearm Certificates for Non-Residents) Act 2000 is amended— (a) in subsection (1), by the insertion of “, Commissioner” after “Minister” on both occasions where it occurs, (b) in subsection (2), by the insertion of the following paragraph after paragraph (a): “(aa) in case the firearm is a restricted firearm and is intended only for the purposes mentioned in paragraph (a), to the Minister or Commissioner,”, (c) in subsection (4), by the insertion of “or (aa)” after “paragraph (a)”, and (d) in subsection (5), by the insertion of “, Commissioner” after “Minister”.
\n
PART 6
\n
Amendment of Explosives Act 1875 Substitution of section 80 of Explosives Act 1875.
\n
68.— The following section is substituted for section 80 of the Explosives Act 1875 : “80.—(1) Any person who in any place— (a) ignites a firework or causes it to be ignited, or (b) throws, directs or propels an ignited firework at or towards a person or property, is guilty of an offence.
\n
(2)Any person— (a) who possesses a firework with intent to sell or otherwise to supply it to another, and (b) who does not hold a licence under this Act to import it, is guilty of an offence.
\n
(3)In any proceedings for an offence under subsection (2) it is not necessary for the prosecution to negative by evidence the existence of a licence to import the firework concerned, and accordingly the onus of proving the existence of any such licence is on the defendant.
\n
(4)A member of the Garda Síochána who, with reasonable cause, suspects that a person possesses a firework in contravention of subsection (2) may— (a) request that the person give his or her name and address and that the information given by the person in response to the request be verified, (b) if not satisfied that the information so given is correct, request that the person accompany the member to a Garda Síochána station for the purpose of verifying the information, (c) without warrant— (i) search the person and, if the member considers it necessary for that purpose, detain the person for such time as is reasonably necessary to make the search, (ii) enter and search any vehicle, vessel or aircraft in which the member suspects that a firework may be found, and (iii) seize and detain anything found in the course of the search which the member reasonably believes to be evidence of, or relating to, an offence under this section.
\n
(5)This section is without prejudice to any power to detain or search a person or to seize or detain property which may be exercised by a member of the Garda Síochána under any other enactment.
\n
(6)A member of the Garda Síochána who suspects, with reasonable cause, that a person has committed an offence under this section may arrest the person without warrant.
\n
(7)If a judge of the District Court is satisfied by information on oath of a member of the Garda Síochána not below the rank of sergeant that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under this section is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place.
\n
(8)The search warrant shall be expressed, and shall operate, to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána or other persons 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 issue of the warrant, on production if so requested of the warrant and if necessary by the use of reasonable force, (b) to search it and any persons found at the place, and (c) to seize anything found at the place, or anything found in the possession of any person present there at the time of the search that that member reasonably believes to be evidence of, or relating to, the commission of an offence under this section.
\n
(9)A member of the Garda Síochána acting under the authority of a search warrant under this section may— (a) require any person present at the place where the search is being carried out to give to the member his or her name and address, 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), or (iii) gives a name or address which the member has reasonable cause for believing is false or misleading.
\n
(10)A person who— (a) does not give his or her name and address when requested to do so under subsection (4)(a) of this section or gives a name and address that is false or misleading, or (b) does not comply with a request under subsection (4)(b) of 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.
\n
(11)A person who— (a) obstructs or attempts to obstruct a member of the Garda Síochána acting under the authority of a search warrant under this section, (b) does not comply with a requirement under subsection (9)(a) of this section, or (c) gives a false or misleading name or address to such 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
(12)A person guilty of an offence under this section (except subsection (10) or (11)) is 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.
\n
(13)A court by which a person is convicted of an offence under subsection (1) or (2) may order anything shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such other manner as the court thinks fit.
\n
(14)In this section— “ banger” means a non-metallic case containing black powder, the principal purpose of which is to make a noise when ignited or initiated; “ black powder” means a powder consisting of a mixture of charcoal and sodium nitrate or potassium nitrate, with or without sulphur; “ firework”— (a) means a device containing pyrotechnic material which, when functioning, burns or explodes to produce a visual or aural effect or movement or a gas, either separately or in any combination, as a direct form of entertainment, but (b) except in subsection (1)(b) does not include— (i) a low hazard firework (except a banger), or (ii) a firework imported under licence in accordance with section 40(9) of this Act; “ low hazard firework” means a firework which presents a low hazard and is designed for indoor use; “ place” includes a dwelling; “ pyrotechnic material” means a substance or mixture of substances designed, when ignited, to produce an aural or visual effect or a gas either separately or in any combination.”.
\n
Other amendments of Explosives Act 1875.
\n
69.— Each provision of the Explosives Act 1875 specified in Schedule 2 to the Criminal Justice Act 2006 is amended in the manner specified in the third and fourth columns opposite the mention of that provision in the first column of that Schedule.
\n
PART 7
\n
Organised Crime Interpretation (Part 7).
\n
70.—(1) In this Part— “ act” includes omission and a reference to the commission or doing of an act includes a reference to the making of an omission; “ criminal organisation” means a structured group, however organised, that— (a) is composed of 3 or more persons acting in concert, (b) is established over a period of time, (c) has as its main purpose or main activity the commission or facilitation of one or more serious offences in order to obtain, directly or indirectly, a financial or other material benefit; “ Irish ship” has the meaning it has in section 9 of the Mercantile Marine Act 1955 ; “ serious offence” means an offence for which a person may be punished by imprisonment for a term of 4 years or more; “ structured group” means a group that— (a) is not randomly formed for the immediate commission of a single offence, and (b) does not need to have formally defined roles for its members, continuity of its membership or a developed structure.
\n
(2)For the purposes of this section facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
\n
Offence of conspiracy.
\n
71.—(1) Subject to subsections (2) and (3), a person who conspires, whether in the State or elsewhere, with one or more persons to do an act— (a) in the State that constitutes a serious offence, or (b) in a place outside the State that constitutes a serious offence under the law of that place and which would, if done in the State, constitute a serious offence, is guilty of an offence irrespective of whether such act actually takes place or not.
\n
(2)Subsection (1) applies to a conspiracy committed outside the State if— (a) the offence, the subject of the conspiracy, was committed, or was intended to be committed, in the State or against a citizen of Ireland, (b) the conspiracy is committed on board an Irish ship, (c) the conspiracy is committed on an aircraft registered in the State, or (d) the conspiracy is committed by an Irish citizen or a stateless person habitually resident in the State.
\n
(3)Subsection (1) shall also apply to a conspiracy committed outside the State in circumstances other than those referred to in subsection (2), but in that case the Director of Public Prosecutions may not take, or consent to the taking of, proceedings for an offence under subsection (1) except in accordance with section 74
\n
(3).
\n
(4)A person charged with an offence under this section is liable to be indicted, tried and punished as a principal offender.
\n
(5)A stateless person who has his or her principal residence in the State for the 12 months immediately preceding the commission of a conspiracy is, for the purposes of subsection (2), considered to be habitually resident in the State on the date of the commission of the conspiracy.
\n
Organised crime.
\n
72.—(1) A person who, for the purpose of enhancing the ability of a criminal organisation to commit or facilitate— (a) a serious offence in the State, or (b) in a place outside the State, a serious offence under the law of that place where the act constituting the offence would, if done in the State, constitute a serious offence, knowingly, by act— (i) in a case to which paragraph (a) applies, whether done in or outside the State, and (ii) in a case to which paragraph (b) applies, done in the State, on board an Irish ship or on an aircraft registered in the State, participates in or contributes to any activity of the organisation is guilty of an offence.
\n
(2)In proceedings for an offence under subsection (1), it shall not be necessary for the prosecution to prove that— (a) the criminal organisation concerned actually committed a serious offence in the State or a serious offence under the law of a place outside the State where the act constituting the offence would, if done in the State, constitute a serious offence, as the case may be, (b) the participation or contribution of the person concerned actually enhanced the ability of the criminal organisation concerned to commit or facilitate the offence concerned, or (c) the person concerned knew the specific nature of any offence that may have been committed or facilitated by the criminal organisation concerned.
\n
(3)In determining whether a person participates in or contributes to any activity of a criminal organisation, the court may consider, inter alia, whether the person— (a) uses a name, word, symbol or other representation that identifies, or is associated with, the organisation, or (b) receives any benefit from the organisation.
\n
(4)For the purposes of this section, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
\n
(5)A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.
\n
Commission of offence for criminal organisation.
\n
73.—(1) A person who commits a serious offence for the benefit of, at the direction of, or in association with, a criminal organisation is guilty of an offence.
\n
(2)In proceedings for an offence under subsection (1), it shall not be necessary for the prosecution to prove that the person concerned knew any of the persons who constitute the criminal organisation concerned.
\n
(3)A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.
\n
Proceedings relating to offences committed outside State.
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74.—(1) Proceedings for an offence under section 71 or 72 in relation to an act committed outside the State may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.
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(2)Where a person is charged with an offence referred to in subsection (1), no further proceedings in the matter (other than any remand in custody or on bail) may be taken except by or with the consent of the Director of Public Prosecutions.
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(3)The Director of Public Prosecutions may take, or consent to the taking of, further proceedings against a person for an offence in respect of an act to which subsection (1) of section 71 applies and that is committed outside the State in the circumstances referred to in subsection (3) of that section if satisfied— (a) that— (i) a request for a person’s surrender for the purpose of trying him or her for an offence in respect of that act has been made under Part II of the Extradition Act 1965 by any country, and (ii) the request has been finally refused (whether as a result of a decision of the court or otherwise), or (b) that— (i) a European arrest warrant has been received from an issuing state for the purpose of bringing proceedings against the person for an offence in respect of that act, and (ii) a final determination has been made that the European arrest warrant should not be endorsed for execution in the State under the European Arrest Warrant Act 2003 or that the person should not be surrendered to the issuing state concerned, or (c) that, because of the special circumstances (including, but not limited to, the likelihood of a refusal referred to in paragraph (a)(ii) or a determination referred to in paragraph (b)(ii)), it is expedient that proceedings be taken against the person for an offence under the law of the State in respect of the act.
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(4)In this section “European arrest warrant” and “issuing state” have the meanings they have in section 2(1) of the European Arrest Warrant Act 2003 .
\n
Evidence in proceedings under this Part.
\n
75.—(1) In any proceedings for an offence under section 71 — (a) a certificate that is signed by an officer of the Department of Foreign Affairs and states that— (i) a passport was issued by that Department of State to a person on a specified date, and (ii) to the best of the officer’s knowledge and belief, the person has not ceased to be an Irish citizen, is evidence that the person was an Irish citizen on the date on which the offence concerned is alleged to have been committed, unless the contrary is shown, and (b) a certificate that is signed by the Director of Public Prosecutions or by a person authorised by him or her and that states that any of the matters specified in paragraph (a), (b) or (c) of section 74
\n
(3)is evidence of the facts stated in the certificate, unless the contrary is shown.
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(2)A document purporting to be a certificate under subsection (1) is deemed, unless the contrary is shown— (a) to be such a certificate, (b) to have been signed by the person purporting to have signed it, and (c) in the case of a certificate signed with the authority of the Minister for Foreign Affairs or the Director of Public Prosecutions, to have been signed in accordance with the authorisation.
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Liability for offences by bodies corporate.
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76.—(1) Where an offence under this Part is committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any wilful neglect on the part of, any person, being a director, manager, secretary or any other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be 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) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
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Double jeopardy.
\n
77.— A person who is acquitted or convicted of an offence in a place outside the State shall not be proceeded against for an offence under— (a) section 71 consisting of the act, or the conspiracy to do an act, that constituted the offence, or (b) section 72 consisting of the act that constituted the offence, of which the person was so acquitted or convicted.
\n
Amendment of Act of 1967.
\n
78.— The Act of 1967 is amended— (a) in section 13(1), by the insertion of “or an offence under section 71 , 72 or 73 of the Criminal Justice Act 2006” after “the offence of murder under section 6 or 11 of the Criminal Justice (Terrorist Offences) Act 2005 or an attempt to commit such offence”, and (b) in section 29(1), by the insertion of the following paragraph after paragraph (k): “(l) an offence under section 71 , 72 or 73 of the Criminal Justice Act 2006.”.
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Amendment of Schedule to Bail Act 1997.
\n
79.— The Schedule to the Bail Act 1997 is amended by the insertion of the following after paragraph 28: “Organised Crime.
\n
28A.— An offence under section 71 , 72 or 73 of the Criminal Justice Act 2006.”.
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PART 8
\n
Misuse of Drugs Definition.
\n
80.— In this Part “ Act of 1977” means Misuse of Drugs Act 1977.
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Amendment of section 15A of Act of 1977.
\n
81.—(1) Section 15A of the Act of 1977 is amended by the insertion of the following subsection after subsection (3): “(3A) In any proceedings for an offence under this section, it shall not be necessary for the prosecutor to prove that a person knew that at any time while the controlled drug or drugs concerned were in the person’s possession that the market value of that drug or the aggregate of the market values of those drugs, as the case may be, amounted to €13,000 or more or that he or she was reckless in that regard.”.
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(2)This section shall not have effect in relation to proceedings for an offence under section 15A of the Act of 1977 instituted before the commencement of this section.
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Importation of controlled drugs in excess of certain value.
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82.— The Act of 1977 is amended by the insertion of the following section after section 15A: “Importation of controlled drugs in excess of certain value.
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15B.—(1) A person shall be guilty of an offence where— (a) the person imports one or more controlled drugs in contravention of regulations under section 5 of this Act, and (b) at or about the time the drug or drugs are imported the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to €13,000 or more.
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(2)If the court is satisfied that a member of the Garda Síochána or an officer of customs and excise has knowledge of the unlawful sale or supply of controlled drugs, that member or officer, as the case may be, shall be entitled in any proceedings for an offence under this section to be heard and to give evidence as to— (a) the market value of the controlled drug concerned, or (b) the aggregate of the market values of the controlled drugs concerned.
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(3)In any proceedings for an offence under this section, it shall not be necessary for the prosecutor to prove that a person knew that at the time the person imported the controlled drug or drugs concerned that the market value of that drug or the aggregate of the market values of those drugs, as the case may be, amounted to €13,000 or more or that he or she was reckless in that regard.
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(4)No proceedings may be instituted under this section except by or with the consent of the Director of Public Prosecutions.
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(5)In this section ‘market value’ and ‘an officer of customs and excise’ have the meanings they have in section 15A of this Act.”.
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Supply of controlled drugs into prisons and places of detention.
\n
83.— The Act of 1977 is amended by the insertion of the following section after section 15B (inserted by section 82 of this Act): “Supply of controlled drugs into prisons and places of detention.
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15C.—(1) A person shall be guilty of an offence where— (a) the person, other than in accordance with regulations made under section 4 of this Act, conveys a controlled drug into a prison, children detention school or remand centre or to a person in the prison, school or centre, (b) the person, other than in accordance with regulations made under section 4 of this Act, places a controlled drug in any place inside or outside a prison, children detention school or remand centre with intent that it shall come into the possession of a person in the prison, school or centre, (c) the person throws or projects a controlled drug into a prison, children detention school or remand centre, or (d) the person, while in the vicinity of a prison, children detention school or remand centre, has in his or her possession a controlled drug with intent to commit an act referred to in paragraph (a), (b) or (c) of this subsection.
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(2)A person may be guilty of an offence under subsection (1) of this section irrespective of the quantity of the controlled drug concerned.
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(3)Subject to section 29(3) of this Act, in any proceedings for an offence under subsection (1)(d) of this section, where— (a) it is proved that a person was in possession of a controlled drug in the vicinity of a prison, children detention school or remand centre, as the case may be, and (b) the court (or the jury, as the case may be), having regard to all the circumstances including the person’s proximity to the prison, school or centre, as the case may be, the packaging (if any) of the controlled drug and the time of the day or night concerned, is satisfied that it is reasonable to assume that the controlled drug was not intended for his or her immediate personal use, he or she shall be presumed, until the court (or the jury, as the case may be) is satisfied to the contrary, to have been in possession of the controlled drug with intent to commit an act referred to in paragraph (a) or (b) or, as the case may be, (c) of subsection (1) of this section.
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(4)In any proceedings for an offence under subsection (1) of this section, it shall not be necessary for the prosecutor to prove that the controlled drug concerned was intended to come into the possession of any particular person in the prison, children detention school or remand centre, as the case may be.
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(5)If a prison officer or an authorised member of the staff of a children detention school or remand centre reasonably suspects that a person has committed or is committing an offence under this section, he or she may, for the purpose of detecting the commission of such an offence, search the person at any time while he or she is in the prison, school or centre, as the case may be.
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(6)A prison officer or an authorised member of the staff of a children detention school or remand centre may, for the purpose of performing his or her functions under subsection (5) of this section, have a controlled drug in his or her possession.
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(7)A person guilty of an offence under this section shall be liable— (a) on summary conviction, to a fine not exceeding €3,000 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 10 years or both.
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(8)In this section— ‘an authorised member of the staff’ — (a) in relation to a children detention school, means a member of the staff of the school who is authorised in writing for the purposes of this section by the Director (within the meaning of section 157 of the Children Act 2001 ) of the school, and (b) in relation to a remand centre, means a member of the staff of the centre who is authorised in writing for the purposes of this section by the owners or, as the case may be, the managers of the centre; ‘children detention school’ and ‘remand centre’ have the meanings they have in section 3(1) of the Children Act 2001 ; ‘prison’ means a place of custody administered by the Minister for Justice, Equality and Law Reform and includes Saint Patrick’s Institution and a place of detention provided under section 2 of the Prisons Act 1970 , and ‘prison officer’, in relation to a prison, shall be construed accordingly.”.
\n
Amendment of section 27 of Act of 1977.
\n
84.— Section 27 of the Act of 1977 is amended— (a) in subsection (3A)— (i) by the substitution of “an offence under section 15A or 15B of this Act” for “an offence under section 15A”, and (ii) by the substitution of the following paragraph for paragraph (a): “(a) to imprisonment for life or such shorter period as the court may determine, subject to subsections (3B) to (3CC) of this section or, where subsection (3CCCC) of this section applies, to that subsection, and”, (b) by the insertion of the following subsection after subsection (3A): “(3AA) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular, have regard to whether the person has a previous conviction for a drug trafficking offence.”, (c) in subsection (3B), by the substitution of “an offence under section 15A or 15B of this Act” for “an offence under section 15A”, (d) by the insertion of the following subsections after subsection (3C): “(3CC) The court, in considering for the purposes of subsection (3C) of this section whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to— (a) whether the person convicted of the offence concerned was previously convicted in respect of a drug trafficking offence, and (b) whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence. (3CCC) Subsections (3B) to (3CC) of this section apply and have effect only in relation to a person convicted of a first offence under section 15A or 15B of this Act (other than a person who falls under paragraph (b) of subsection (3CCCC) of this section), and accordingly references in those first-mentioned subsections to an offence under section 15A or 15B of this Act are to be construed as references to a first such offence. (3CCCC) Where a person (other than a child or young person)— (a) is convicted of a second or subsequent offence under section 15A or 15B of this Act, or (b) is convicted of a first offence under one of those sections and has been convicted under the other of those sections, the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than 10 years.”, (e) in subsection (3I), by the substitution of “an offence under section 15A or 15B of this Act” for “an offence under section 15A of this Act” and the substitution of “each of those offences” for “that offence”, and (f) by the insertion of the following subsection after subsection (3J):
\n
“(3K) In subsections (3AA) and (3CC) of this section ‘drug trafficking offence’ has the meaning it has in section 3
\n
(1)of the Criminal Justice Act 1994 and in subsection (3CC) of this section ‘drug trafficking’ has the meaning it has in the said section 3(1).”.
\n
Amendment of section 29 of Act of 1977.
\n
85.— Section 29 of the Act of 1977 is amended by the substitution of the following subsection for subsection (3): “(3) In any proceedings for an offence under section 15 or 15A, or subsection (1)(d) of section 15C, of this Act, a defendant may rebut the presumption raised by subsection (2) of the said section 15 or 15A or subsection (3) of the said section 15C, as the case may be, by showing that at the time of the alleged offence, he or she was by virtue of regulations made under section 4 of this Act lawfully in possession of the controlled drug or drugs to which the proceedings relate.”.
\n
Amendment of section 3(1) of Criminal Justice Act 1994.
\n
86.— Section 3(1) of the Criminal Justice Act 1994 is amended in the definition of “ drug trafficking offence” by the insertion of the following paragraph after paragraph (bb): “(bbb) an offence under section 15B (importation of controlled drugs in excess of certain value) of that Act,”.
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PART 9
\n
Obligations of Drug Trafficking Offenders to Notify Certain Information Definitions (Part 9).
\n
87.— In this Part, unless the context otherwise requires— “ court” means any court exercising criminal jurisdiction and includes a court-martial; “imprisonment” includes detention in Saint Patrick’s Institution and a place of detention provided under section 2 of the Prisons Act 1970 , and “prison” shall be construed accordingly; “ prescribed” means prescribed by regulations made by the Minister under this Act; “ relevant date” means the date of conviction for the drug trafficking offence concerned; “ remission from the sentence” means, in relation to the sentence imposed on a person, the remission which the person may earn from the sentence under the rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct; “ sentence” includes a sentence of imprisonment and an order postponing sentence.
\n
Drug trafficking offences for purposes of this Part.
\n
88.— In this Part “drug trafficking offence” has the meaning it has in section 3(1) (as amended by section 86 ) of the Criminal Justice Act 1994 but does not include such an offence unless the person convicted of it has, in respect thereof, been sentenced to imprisonment for a period of more than one year.
\n
Persons subject to the requirements of this Part.
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89.—(1) Without prejudice to subsections (2) and (3) and section 95 , a person is subject to the requirements of this Part if he or she is convicted on indictment of a drug trafficking offence after the commencement of this Part.
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(2)A person is also subject to the requirements of this Part if he or she has been convicted on indictment of a drug trafficking offence before the commencement of this Part and, at that commencement, the sentence to be imposed on the person in respect of the offence has yet to be determined.
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(3)If a person has been convicted on indictment of a drug trafficking offence before the commencement of this Part and, at that commencement, a sentence has been imposed on the person in respect of the offence and— (a) the person is serving the sentence in prison, (b) the person is temporarily released under section 2 of the Criminal Justice Act 1960 , or (c) the sentence is otherwise still in force or current, the Circuit Court, in the circuit where the person ordinarily resides or has his or her most usual place of abode, may, on application to it in that behalf by a member of the Garda Síochána not below the rank of superintendent, order that the person shall be subject to the requirements of this Part if it considers that the interests of the common good so require and that it is appropriate in all the circumstances of the case.
\n
(4)An application under subsection (3) may be made within a period of 2 months, or such longer period as the Circuit Court may permit, of the commencement of this Part.
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Period for which person is subject to requirements of this Part and related matters.
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90.—(1) A person who, by reason of section 89 , is subject to the requirements of this Part shall be so subject for the period referred to in subsection (3) or, in the case of a person referred to in subsection (2) or (3) of section 89 , so much (if any) of that period as falls after the commencement of this Part.
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(2)Subsection (1) is subject to section 93 .
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(3)The period mentioned in subsection (1) is the period, beginning with the relevant date, of— (a) 12 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life, (b) 7 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than 10 years but not one of imprisonment for life, (c) 5 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than 5 years but not more than 10 years, (d) 3 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than one year but not more than 5 years, (e) one year if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for any term, the operation of the whole of which is suspended (but, if the operation of that term is revived by the court, whichever of the preceding paragraphs is appropriate shall apply instead of this paragraph).
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(4)If— (a) a sentence is imposed on a person in respect of a drug trafficking offence, and (b) at the time of sentencing the person is aged under 18 years, subsection (3) shall have effect in relation to that person as if for the references to 12 years, 7 years, 5 years, 3 years and one year in that subsection there were substituted references to 6 years, 3½ years, 2½ years, 1½ years and 6 months, respectively.
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(5)If a sentence of imprisonment for any term is imposed on the person referred to in subsection (1) in respect of the offence concerned and the operation of a part of that term is suspended— (a) the part of that term the operation of which is not suspended shall be regarded as the term of imprisonment imposed on that person for the purposes of subsection (3) (but, if the operation of the first-mentioned part of that term is revived by the court, whichever of paragraphs (a), (b), (c) and (d) of subsection (3) is appropriate shall apply without regard to this paragraph), (b) paragraph (a) extends to a case in which that suspension is provided for subsequent to the imposition of the sentence.
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(6)If a person is or has been sentenced in respect of 2 or more drug trafficking offences and the sentences imposed are consecutive or partly concurrent then subsection (3) shall have effect as if— (a) in the case of consecutive sentences, the sentence imposed in respect of each of the offences were or had been a sentence equal to the aggregate of those sentences, (b) in the case of partly concurrent sentences, the sentence imposed in respect of each of the offences were or had been a sentence equal to the aggregate of those sentences after making such deduction as is necessary to ensure that no period of time is counted more than once.
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(7)Without prejudice to section 93 , a person shall cease to be subject to the requirements of this Part if the conviction in respect of the offence concerned is quashed on appeal or otherwise.
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(8)A reference in this section to a sentence imposed on a person shall, if the sentence is varied on appeal, be construed as a reference to the sentence as so varied and, accordingly, the period for which a person is subject to the requirements of this Part, by reason of this section, shall stand reduced or increased, as the case may be, in the event that such a variation is made which results in the sentence falling under a different paragraph of subsection (3) than it did before the variation.
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Supply of information to facilitate compliance with this Part.
\n
91.— The person for the time being in charge of the place where a person subject to the requirements of this Part is ordered to be imprisoned in respect of an offence (whether or not the offence that gave rise to the person’s being subject to those requirements) shall notify in writing— (a) before the date on which the sentence of imprisonment imposed on the person in respect of the first-mentioned offence expires or, as the case may be, the person’s remission from the sentence begins (“the date of release”), the person that he or she is subject to the requirements of this Part, and (b) at least 10 days before the date of release, the Commissioner of the Garda Síochána of the fact that that expiry or remission will occur in relation to the person.
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Notification requirements.
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92.—(1) A person who is subject to the requirements of this Part shall, before the end of the period of 7 days beginning with— (a) the relevant date, (b) if an order is made under section 89
\n
(3)or 95
\n
(3), the date of the order, or (c) if the relevant date is prior to the commencement of this Part and no such order is made, that commencement, notify to the Garda Síochána— (i) his or her name and, where he or she also uses one or more other names, each of those names, and (ii) his or her home address.
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(2)A person who is subject to those requirements shall also, before the end of the period of 7 days beginning with— (a) the person’s using a name which is not the name, or one of the names, last previously notified by him or her to the Garda Síochána under this section, (b) any change of his or her home address, (c) the person’s having resided or stayed, for a qualifying period, at any place in the State, the address of which has not been notified to the Garda Síochána under this section as being his or her current home address, or (d) the person’s returning to an address in the State, having, immediately prior to such return, been outside the State for a continuous period of 7 days or more, notify that name, the effect of that change, the address of that place or, as the case may be, the fact of that return to the Garda Síochána.
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(3)If a person who is subject to the requirements of this Part intends to leave the State for a continuous period of 7 days or more he or she shall notify the Garda Síochána of that intention and, if known, the address of the place outside the State he or she intends to reside or stay at.
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(4)If a person who is subject to the requirements of this Part is outside the State for a continuous period of 7 days or more and did not intend, on leaving the State, to be outside the State for such a continuous period, the person shall, subject to subsection (5), notify the Garda Síochána, before the expiry of a further period of 7 days, reckoned from the 7th day that he or she is so outside the State, of that fact and the address of the place at which he or she is residing or staying outside the State.
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(5)Subsection (4) shall not apply if the person concerned has returned to the State before the expiry of the further period of 7 days mentioned in that subsection.
\n
(6)A notification given to the Garda Síochána by any person shall not be regarded as complying with subsection (1), (2), (3) or (4) unless it also states the person’s— (a) date of birth, (b) name on the relevant date and, where he or she used one or more other names on that date, each of those names, and (c) home address on the relevant date.
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(7)For the purpose of determining any period for the purposes of subsection (1), (2), (3) or (4), there shall be disregarded any time when the person concerned is— (a) remanded in custody, (b) serving a sentence in prison, or (c) temporarily released under section 2 of the Criminal Justice Act 1960 .
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(8)A person may give a notification under this section— (a) by attending in person at any Garda Síochána station which is a divisional or district headquarters and notifying orally a member of the Garda Síochána at the station of the matters concerned, (b) by sending, by post, a written notification of the matters concerned to any Garda Síochána station which is such a headquarters, or (c) by such other means as may be prescribed.
\n
(9)The onus of proof of the sending by post of such a notification shall, in any proceedings for an offence under section 94
\n
(1)(a), lie on the defendant.
\n
(10)A notification under this section shall be acknowledged in writing and that acknowledgement shall be in such form as may be prescribed.
\n
(11)In this section— “ home address” , in relation to any person, means the address of his or her sole or main residence or, if he or she has no such residence, his or her most usual place of abode or, if he or she has no such abode, the place which he or she regularly visits; “ qualifying period” means— (a) a period of 7 days, or (b) 2 or more periods, in any period of 12 months, which (taken together) amount to 7 days.
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Discharge from obligation to comply with requirements of this Part.
\n
93.—(1) A person who, by reason of sections 89 and 90 , is subject to the requirements of this Part for a period of 12 years or 6 years (in the case of a person to whom section 90
\n
(4)applies) may apply to the court for an order discharging the person from the obligation to comply with those requirements on the ground that the interests of the common good are no longer served by his or her continuing to be subject to them.
\n
(2)An application under this section shall not be made before the expiration of the period of 8 years, or 4 years in the case of a person to whom section 90
\n
(4)applies, from the date of the applicant’s release from prison.
\n
(3)The applicant shall, not later than the beginning of such period before the making of the application as may be prescribed, notify the superintendent of the Garda Síochána of the district in which he or she ordinarily resides or has his or her most usual place of abode of his or her intention to make an application under this section.
\n
(4)That superintendent or any other member of the Garda Síochána shall be entitled to appear and be heard at the hearing of that application.
\n
(5)On the hearing of an application under this section, the court shall, if it considers that it is appropriate to do so in all the circumstances of the case, make an order discharging the applicant from the obligation to comply with the requirements of this Part.
\n
(6)In considering an application under this section, the court may have regard to any matter that appears to it to be relevant and may, in particular, have regard to the character of the applicant, his or her conduct after conviction for the offence concerned and the offence concerned.
\n
(7)If the court makes an order discharging the applicant from the obligation to comply with the requirements of this Part, the court shall cause the Garda Síochána to be notified, in writing, of that discharge.
\n
(8)The jurisdiction of the court in respect of an application under this section may be exercised by the judge of the circuit where the applicant ordinarily resides or has his or her most usual place of abode.
\n
(9)Proceedings under this section shall be heard otherwise than in public.
\n
(10)In this section— “applicant” means the person referred to in subsection (1); “ court” means the Circuit Court; “ date of the applicant’s release from prison” means the date on which the applicant’s sentence of imprisonment for the purposes of section 90
\n
(3)expires or, as the case may be, his or her remission from the sentence begins.
\n
Offences in connection with notification requirements.
\n
94.—(1) A person who— (a) fails, without reasonable excuse, to comply with subsection (1), (2), (3) or (4) of section 92 or section 95
\n
(1), or (b) notifies to the Garda Síochána, in purported compliance with that subsection (1), (2), (3) or (4) or section 95
\n
(1), as may be appropriate, any information which he or she knows to be false or misleading in any respect, shall be guilty of an offence.
\n
(2)A person is guilty of an offence under subsection (1)(a) on the day on which he or she first fails, without reasonable excuse, to comply with subsection (1), (2), (3) or (4), as the case may be, of section 92 or section 95
\n
(1)and continues to be guilty of it throughout any period during which the failure continues; but a person shall not be prosecuted under that provision more than once in respect of the same failure.
\n
(3)A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.
\n
(4)In proceedings for an offence under subsection (1)(a) a statement on oath by a member of the Garda Síochána referred to in subsection (5) that no notification of the matters concerned was given by the defendant to the Garda Síochána by any of the means referred to in section 92
\n
(8)shall, until the contrary is shown, be evidence that no such notification was given by the defendant.
\n
(5)The member of the Garda Síochána referred to in subsection (4) is a member not below the rank of sergeant who, from his or her evidence to the court, the court is satisfied— (a) is familiar with the systems operated by the Garda Síochána for recording the fact that particular information has been received by them, and (b) has made all proper inquiries in ascertaining whether a notification by the defendant of the matters concerned was received by the Garda Síochána.
\n
Application of this Part to persons convicted outside State.
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95.—(1) If— (a) a person has been convicted, in a place other than the State, of an offence, (b) the act constituting the offence concerned would, if done in the State, constitute a drug trafficking offence (within the meaning of this Part) under the law of the State, and either— (i) the person would, accordingly, be subject to the requirements of this Part by reason of subsection (1) or (2) of section 89 , or (ii) at the commencement of this Part, the person, as a person who has been convicted of an offence mentioned in paragraph (a), is required, under the law of the first-mentioned place in that paragraph (however that requirement is described in that law), to notify to the police in that place information of a similar nature to that required to be notified by a person otherwise subject to the requirements of this Part, and (c) the person is, at the time of the conviction, or thereafter becomes, resident in the State, he or she shall, before the end of the period specified in subsection (2), notify to the Garda Síochána— (I) his or her name and, where he or she also uses one or more other names, each of those names, (II) his or her home address, and (III) the fact of his or her conviction for the offence referred to in paragraph (a).
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(2)The period referred to in subsection (1) is the period of 7 days beginning with— (a) in case the person is already resident in the State upon his or her so first returning and paragraph (c) does not apply, the date on which the person first returns to the State after being convicted of the offence concerned, (b) in case the person is not so resident and paragraph (c) does not apply, the date on which the person first becomes resident in the State after being convicted of the offence concerned, or (c) in case the date on which the person so first returns to, or becomes resident in, the State is prior to the commencement of this Part, the commencement of this Part.
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(3)The Circuit Court, in the circuit where a person to whom subsection (1) applies ordinarily resides or has his or her most usual place of abode, on application to it in that behalf by a member of the Garda Síochána not below the rank of superintendent, may order that the person shall be subject to the requirements of this Part if it considers that the interests of the common good so require and that it is appropriate in all the circumstances of the case.
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(4)An application under subsection (3) may be made within a period of— (a) 2 months of the date of the notification under subsection (1), or (b) if no such notification is given, 6 months of the date specified in paragraph (a), (b) or (c), as may be appropriate, of subsection (2), or such longer period as the Circuit Court may permit.
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(5)For the purposes of this section, a person shall be deemed to be resident in the State if he or she is ordinarily resident, or has his or her principal residence, in the State, or is in the State for a qualifying period.
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(6)Where a person to whom this section applies is charged with an offence under section 94 , he or she shall, whether or not he or she would be treated for the purposes of section 94 as having a reasonable excuse apart from this subsection, be treated for those purposes as having a reasonable excuse if he or she believed that the act constituting the offence referred to in subsection (1) would not, if done in the State, constitute any drug trafficking offence (within the meaning of this Part) under the law of the State.
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(7)For the purposes of subsection (6), it is immaterial whether a belief is justified or not if it is honestly held.
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(8)Subsections (8) to (10) of section 92 shall apply to a notification under subsection (1) as they apply to a notification under that section.
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(9)In this section— “ police” means, in relation to the first-mentioned place in subsection (1), any police force in that place, or a member thereof, whether that force is organised at a national, regional or local level; “ home address” and “qualifying period” have the same meanings as they have in section 92 .
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Certificate as evidence of person’s being subject to requirements of this Part.
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96.—(1) If the conviction, after the commencement of this Part, of a person for an offence gives rise or may give rise to his or her becoming subject to the requirements of this Part, the court before which he or she is convicted of the offence shall forthwith, after the conviction, issue to each of the persons referred to in subsection (6) a certificate stating— (a) that the person has been convicted of the offence, (b) the sentence, if any, imposed on the person in respect of the offence, and (c) that the person has become or, as may be appropriate, may become subject to the requirements of this Part.
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(2)If a sentence is imposed on a person in respect of the offence referred to in subsection (1) after a certificate relating to that offence has been issued under that subsection, the court which imposed the sentence shall forthwith, after the imposition of the sentence, issue to each of the persons referred to in subsection (6) a certificate stating the sentence that has been imposed on the person.
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(3)A court that makes an order under section 89
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(3)or 95
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(3)in respect of a person shall forthwith, after the making of the order, issue to each of the persons referred to in subsection (6) a certificate stating— (a) the offence for which the person has been convicted that gave rise to his or her becoming subject to the requirements of this Part, (b) the sentence imposed on the person in respect of that offence, and (c) that the person has become subject to the requirements of this Part.
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(4)If— (a) the conviction referred to in subsection (1) or (3)(a) insofar as it relates to an order made under section 89
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(3)is quashed on appeal or otherwise, or (b) the sentence imposed on foot of that conviction is varied on appeal or otherwise, the court which quashes the conviction or varies the sentence shall forthwith, after the quashing of the conviction or the variation of the sentence, issue to each of the persons referred to in subsection (6) a certificate stating that the conviction has been quashed or stating the variation that has been made in the sentence.
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(5)A certificate purporting to be issued under subsection (1), (2), (3) or (4) shall, in any proceedings, be evidence of the matters stated in it without proof of the signature of the officer of the court purporting to sign it or that that person was authorised to sign it.
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(6)The persons referred to in subsections (1), (2), (3) and (4) are— (a) the Garda Síochána, (b) the person convicted of the offence concerned, and (c) where appropriate, the person for the time being in charge of the place where the convicted person is ordered to be imprisoned.
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(7)The mode of proving a conviction or sentence authorised by subsection (5) shall be in addition to, and not in substitution for, any other authorised mode of proving such conviction or sentence.
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(8)Rules of court may make provision in relation to the form of certificates under this section and the manner in which they may be issued.
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Proof of foreign conviction in certain cases.
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97.—(1) In proceedings against a person for an offence under section 94 (where the person is a person referred to in section 95
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(1)), the production to the court of a document that satisfies the condition referred to in subsection (2) and which purports to contain either or both— (a) particulars of the conviction in a state, other than the State, of that person for an offence and of the act constituting the offence, (b) a statement that, on a specified date, that person was subject to the first-mentioned requirement in section 95
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(1)(b)(ii), shall, without further proof, be evidence, until the contrary is shown, of the matters stated therein.
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(2)The condition mentioned in subsection (1) is that the document concerned purports to be signed or certified by a judge, magistrate or officer of the state referred to in that subsection and to be authenticated by the oath of some witness or by being sealed with the official seal of a minister of state of that state (judicial notice of which shall be taken by the court).
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(3)The condition mentioned in subsection (1) shall be regarded as being satisfied without proof of the signature or certification, and the authentication of it, that appears in or on the document.
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PART 10
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Sentencing Definitions (Part 10).
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98.— In this Part, unless the context otherwise requires— “ authorised person” means a person who is appointed in writing by the Minister, or a person who is one of a class of persons which is prescribed, to be an authorised person for the purposes of this Part; “a direction” means a direction given by the Minister under section 2 of the Criminal Justice Act 1960 authorising the release of a person from prison (within the meaning of that section) for a temporary period; “ governor” includes, in relation to a prisoner, a person for the time being performing the functions of governor; “ imprisonment” includes— (a) detention in Saint Patrick’s Institution, and (b) detention in a place provided under section 2 of the Prisons Act 1970 , and “sentence of imprisonment” shall be construed accordingly; “ mandatory term of imprisonment” includes, in relation to an offence, a term of imprisonment imposed by a court under an enactment that provides that a person who is guilty of the offence concerned shall be liable to a term of imprisonment of not less than such term as is specified in the enactment; “ offender” means a person in respect of whom a restriction on movement order is, or may be, made under section 101 ; “ probation and welfare officer” means a person appointed by the Minister to be— (a) a probation officer, (b) a welfare officer, or (c) a probation and welfare officer; “ probation and welfare service” means those officers of the Minister assigned to perform functions in the part of the Department of State for which the Minister is responsible commonly known by that name; “ restriction on movement order” means an order made by a court under section 101 .
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Power to suspend sentence.
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99.—(1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.
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(2)It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during— (a) the period of suspension of the sentence concerned, or (b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned, and that condition shall be specified in the order concerned.
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(3)The court may, when making an order under subsection (1), impose such conditions in relation to the order as the court considers— (a) appropriate having regard to the nature of the offence, and (b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence, and any condition imposed in accordance with this subsection shall be specified in that order.
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(4)In addition to any condition imposed under subsection (3), the court may, when making an order under subsection (1) consisting of the suspension in part of a sentence of imprisonment or upon an application under subsection (6), impose any one or more of the following conditions in relation to that order or the order referred to in the said subsection (6), as the case may be: (a) that the person co-operate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public; (b) that the person undergo such— (i) treatment for drug, alcohol or other substance addiction, (ii) course of education, training or therapy, (iii) psychological counselling or other treatment, as may be approved by the court; (c) that the person be subject to the supervision of the probation and welfare service.
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(5)A condition (other than a condition imposed, upon an application under subsection (6), after the making of the order concerned) imposed under subsection (4) shall be specified in the order concerned.
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(6)A probation and welfare officer may, at any time before the expiration of a sentence of a court to which an order under subsection (1) consisting of the suspension of a sentence in part applies, apply to the court for the imposition of any of the conditions referred to in subsection (4) in relation to the order.
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(7)Where a court makes an order under this section, it shall cause a copy of the order to be given to— (a) the Garda Síochána, or (b) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.
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(8)Where a court has made an order under subsection (1) and imposes conditions under subsection (4) upon an application under subsection (6), it shall cause a copy of the order and conditions to be given to— (a) the probation and welfare service, and (b) (i) the Garda Síochána, or (ii) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.
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(9)Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.
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(10)A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody (other than a period during which the person was serving a sentence of imprisonment in respect of an offence referred to in subsection (9)) pending the revocation of the said order.
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(11)(a) A sentence (other than a sentence consisting of imprisonment for life) imposed— (i) in respect of an offence committed by a person to whom an order under subsection (1) applies, and (ii) during the period of suspension of sentence to which that order applies, shall not commence until the expiration of any period of imprisonment that the person is required to serve of the sentence referred to in paragraph (b) either by virtue of the order under subsection (1) or a revocation under subsection (10). (b) This subsection shall not affect the operation of section 5 of the Criminal Justice Act 1951 .
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(12)Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.
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(13)Where a member of the Garda Síochána or, as the case may be, the governor of the prison to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened the condition referred to in subsection (2) he or she may apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
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(14)A probation and welfare officer may, if he or she has reasonable grounds for believing that a person to whom an order under subsection (1) applies has contravened a condition imposed under subsection (3) or (4), apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
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(15)Where the court fixes a date for the hearing of an application referred to in subsection (13) or (14), it shall, by notice in writing, so inform the person in respect of whom the application will be made, or where that person is in prison, the governor of the prison, and such notice shall require the person to appear before it, or require the said governor to produce the person before it, on the date so fixed and at such time as is specified in the notice.
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(16)If a person who is not in prison fails to appear before the court in accordance with a requirement contained in a notice under subsection (15), the court may issue a warrant for the arrest of the person.
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(17)A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.
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(18)A notice under subsection (15) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways: (a) by delivering it to the person; (b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
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(19)This section shall not affect the operation of— (a) section 2 of the Criminal Justice Act 1960 or Rule 38 of the Rules for the Government of Prisons 1947 (S.R. & O. No. 320 of 1947), or (b) subsections (3G) and (3H) of section 27 of the Misuse of Drugs Act 1977 .
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Imposition of fine and deferral of sentence.
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100.—(1) Where a court makes an order convicting a person of an offence in respect of which the person is liable to both a term of imprisonment and a fine, the court may, subject to subsection (2)— (a) impose a fine on that person in respect of the offence, and (b) make an order— (i) deferring the passing of a sentence of imprisonment for the offence, and (ii) specifying the term of imprisonment that it would propose to impose on the person in respect of that offence should he or she fail or refuse to comply with the conditions specified in the order.
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(2)A court shall not perform functions under subsection (1) unless it is satisfied that— (a) the person concerned consents to the sentence of imprisonment being deferred, (b) the person gives an undertaking to comply with any conditions specified in an order made under subsection (1)(b), and (c) having regard to the nature of the offence concerned and all of the circumstances of the case, it would be in the interests of justice to so do.
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(3)An order under subsection (1)(b) shall specify— (a) the date (in this section referred to as the “specified date”) on which it proposes to pass sentence should the person contravene a condition of the order, being a date that falls not later than 6 months after the making of the order, and (b) the conditions with which the person concerned is to comply during the period between the making of the order and the specified date, including a condition that the person be of good behaviour and keep the peace.
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(4)Where a court makes an order under subsection (1)(b), it shall cause a copy of the order to be given to the person in respect of whom it is made and the Garda Síochána.
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(5)A court that has made an order under subsection (1)(b) shall not later than one month before the specified date require the person in respect of whom the order was made, by notice, to attend a sitting of the court on that date and at such time as is specified in the notice.
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(6)If a person fails to comply with a requirement in a notice under subsection (5), the court may issue a warrant for the arrest of that person.
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(7)Where a member of the Garda Síochána has reasonable grounds for believing that a person to whom an order under subsection (1)(b) applies has contravened a condition of the order, he or she may apply to the court to fix a date for the hearing of an application for an order imposing the term of imprisonment specified in the order in accordance with subsection (1)(b)(ii).
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(8)Where the court fixes a date for the hearing of an application referred to in subsection (7), it shall, by notice in writing, so inform the person in respect of whom the application will be made, and such notice shall require the person to appear before it on the date so fixed and at such time as is specified in the notice.
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(9)If a person fails to appear before the court in accordance with a requirement contained in a notice under subsection (8), the court may issue a warrant for the arrest of the person.
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(10)Upon an application by a member of the Garda Síochána for an order imposing the term of imprisonment specified in accordance with paragraph (b)(ii) of subsection (1), a court may, if it is satisfied that the person in respect of whom the application was made has contravened a condition specified in the order under that subsection, impose the term of imprisonment that it proposed to impose at the time of the making of the order under that subsection (or such lesser term as it considers just in all of the circumstances of the case), unless it considers that it would in all the circumstances be unjust to so do.
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(11)On the specified date the court shall, if it is satisfied that the person in respect of whom the order under subsection (1) was made has complied with the conditions specified in the order, not impose the sentence that it proposed to impose when making that order and shall discharge the person forthwith.
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(12)On the specified date the court may, if it is satisfied that the person in respect of whom the order under subsection (1) was made has contravened a condition specified in the order, impose the term of imprisonment that it proposed to impose at the time of the making of the order (or such lesser term as it considers just in all of the circumstances of the case) unless it considers that in all of the circumstances of the case it would be unjust to so do, and where it considers that it would be unjust to impose a term of imprisonment it shall discharge the person forthwith.
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(13)A notice under subsection (5) or (8) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways: (a) by delivering it to the person; (b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
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(14)Section 18(1) of the Courts of Justice Act 1928 is amended by the insertion of “, including an order under section 100
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(1)of the Criminal Justice Act 2006” after “the person against whom the order shall have been made”.
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Restriction on movement order.
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101.—(1) Where a person aged 18 years or more is convicted of an offence specified in Schedule 3 and the court which convicts him or her of the offence considers that it is appropriate to impose a sentence of imprisonment for a term of 3 months or more on the person in respect of the offence, it may, as an alternative to such a sentence, make an order under this section (“a restriction on movement order”) in respect of the person.
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(2)A restriction on movement order may restrict the offender’s movements to such extent as the court thinks fit and, without prejudice to the generality of the foregoing, may include provision— (a) requiring the offender to be in such place or places as may be specified for such period or periods in each day or week as may be specified, or (b) requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified, or both, but the court may not, under paragraph (a), require the offender to be in any place or places for a period or periods of more than 12 hours in any one day.
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(3)A restriction on movement order may be made for any period of not more than 6 months and, during that period, the offender shall keep the peace and be of good behaviour.
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(4)A restriction on movement order may specify such conditions as the court considers necessary for the purposes of ensuring that while the order is in force the offender will keep the peace and be of good behaviour and will not commit any further offences.
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(5)A restriction on movement order shall specify the restrictions that are to apply to the offender’s movements and, in particular, it shall specify— (a) the period during which it is in force, (b) the period or periods in each day or week during which the offender shall be in any specified place or places, (c) the time at which, or the periods during which, the offender shall not be in any specified place or places or any class or classes of place or places.
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(6)In determining for the purposes of subsection (2)(a) the period or periods during which the offender shall be in a specified place or places, the court shall have regard to the nature and circumstances of the offence of which the offender has been found guilty and any educational course, training, employment or other activity in which the offender is participating, and it shall ensure, as far as practicable, that that period or those periods do not conflict with the practice by the offender of his or her religion.
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(7)In determining for the purpose of subsection (2)(b) the place or places, or class or classes of place or places, the time or the periods to be specified in a restriction on movement order, the court shall have regard to the nature and circumstances of the offence of which the offender has been found guilty, the time that the offender committed the offence, the place where the offence was committed and the likelihood of the offender committing another offence in the same or similar place or places or class or classes of place or places.
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(8)A court shall not make a restriction on movement order in respect of an offender unless it considers, having regard to the offender and his or her circumstances, that he or she is a suitable person in respect of whom such an order may be made and, for that purpose, the court may request a probation and welfare officer to prepare a report in writing in relation to the offender.
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(9)A restriction on movement order which restricts the movements of an offender in accordance with subsection (2)(a) shall not be made without the consent of the owner of, or any adult person habitually residing at, the place or places concerned or, as the case may be, the person in charge of the place or places concerned.
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(10)A court making a restriction on movement order may include in the order a requirement that the restrictions on the offender’s movements be monitored electronically in accordance with section 102 , but it shall not include such a requirement unless it considers, having regard to the offender and his or her circumstances, that he or she is a suitable person in respect of whom such a requirement may be made and, for that purpose, the court may request an authorised person to prepare a report in writing in relation to the offender.
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(11)Before making a restriction on movement order, the court shall explain to the offender in ordinary language— (a) the effect of the order, including any requirement which is to be included in the order under section 102 , (b) the consequences which may follow any failure by the offender to comply with the requirements of the order, and (c) that the court has power under section 103 to vary the order on the application of any person referred to in that section, and the court shall not make the order unless the offender agrees to comply with its requirements.
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(12)The court shall cause certified copies of a restriction on movement order to be sent to— (a) the offender, (b) the member in charge of the Garda Síochána station for the area where the offender resides or, where appropriate, the area where he or she is to reside while the order is in force, (c) where appropriate, an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order.
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Electronic monitoring of restriction on movement order.
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102.— Where the restrictions on an offender’s movements in a restriction on movement order are to be monitored electronically, the order shall include— (a) a provision making an authorised person responsible for monitoring the offender’s compliance with it, and (b) a requirement that the offender shall, either continuously or for such periods as may be specified, have an electronic monitoring device attached to his or her person for the purpose of enabling the monitoring of his or her compliance with the order to be carried out.
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Variation of restriction on movement order.
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103.—(1) Where a restriction on movement order is in force, the court may, if it so thinks proper, on written application by— (a) the offender, (b) where appropriate, the owner of, or an adult person habitually residing at, the place or places or, as the case may be, the person in charge of the place or places, specified in the order, (c) a member of an Garda Síochána, or (d) where appropriate, an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order, vary the order by substituting another period or time or another place for any period, time or place specified in the order.
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(2)An application under subsection (1) shall be made on notice to such of the other parties specified in subsection (1) as is appropriate.
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(3)Where any party specified in subsection (1) objects to the variation of a restriction on movement order, the court shall not vary the order without hearing from that party.
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(4)The court shall cause certified copies of a restriction on movement order varied under this section to be sent to— (a) the offender, (b) where appropriate, the owner of, or an adult person habitually residing at, the place or places or, as the case may be, the person in charge of the place or places, specified in the order, (c) the member in charge of the Garda Síochána station for the area where the offender resides or, where appropriate, the area where he or she is to reside while the order is in force, and (d) where appropriate, an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order.
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(5)The jurisdiction vested in the court under this section shall be exercised by a judge of the District Court for the time being assigned to the district court district, or, as the case may be, a judge of the Circuit Court for the time being assigned to the circuit, in which the offender resides or is to reside while the restriction on movement order is in force.
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Provisions regarding more than one restriction on movement order.
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104.—(1) Where more than one restriction on movement order is in force in respect of an offender at any time, the period during which the offender is required to be in a specified place or places shall, notwithstanding subsections (2) and (3), not be for a period of more than 6 months.
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(2)Where a court makes restriction on movement orders in respect of 2 or more offences of which the offender has been found guilty, it may direct that the period for which the offender is required by any of those orders to be in a specified place or places shall be concurrent with or additional to that specified in any other of those orders.
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(3)Where a court makes a restriction on movement order and at the time of the making of the order there is in force in respect of the offender another such order (whether made by the same or a different court), the court making the later order may direct in that order that the period for which the offender is required by that order to be in a specified place or places shall be concurrent with or additional to that specified in the earlier order.
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Non-compliance with restriction on movement order.
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105.—(1) Where a restriction on movement order is in force and it appears to a court, on application by a member of an Garda Síochána or, where appropriate, an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order, that the offender has failed, without reasonable cause, to comply with the order or any condition to which it is subject, the court may— (a) if the order was made by a court in the district court district, or, as the case may be, the circuit, in which the offender resides or is to reside while the order is in force— (i) direct the offender to comply with the order or any such condition in so far as it has not been complied with, (ii) revoke the order and make another restriction on movement order in respect of the offender, or (iii) revoke the order and deal with the case in any other way in which it could have been dealt with before the order was made, or (b) if the order was made by a court in another district court district or, as the case may be, another circuit, remand the offender on bail to a sitting of that court to be dealt with, and for that purpose, paragraph (a) shall apply in relation to that court, with the necessary modifications.
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(2)The matters to be taken into account by the court in arriving at a decision pursuant to subsection (1) shall include the extent to which, and the period during which, the offender has complied with the order concerned or any condition to which it is subject.
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(3)Where the court proposes to exercise its powers under subsection (1), it shall summon the offender to appear before it and, if the offender does not appear in answer to the summons, it may issue a warrant for his or her arrest.
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(4)The jurisdiction vested in the court under this section shall be exercised by a judge of the District Court for the time being assigned to the district court district, or, as the case may be, a judge of the Circuit Court for the time being assigned to the circuit, in which the offender resides or is to reside while the restriction on movement order is in force.
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Amendment of section 5 of Criminal Justice Act 1951.
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106.— Where 2 or more sentences, one of which is a restriction on movement order, are passed on an offender by the District Court and are ordered to run consecutively, the aggregate of the period during which the order in respect of the offender is in force and the period of any term or terms of imprisonment imposed on him or her shall not exceed the maximum period of the aggregate term of imprisonment specified in section 5 of the Criminal Justice Act 1951 .
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Documentary evidence in relation to offenders.
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107.—(1) Evidence of the presence or absence of the offender in or from a particular place at a particular time may, subject to the provisions of this section, be given by the production of a document or documents being— (a) a statement produced automatically or otherwise by a device, prescribed by regulations under section 111 , by which the offender’s whereabouts were electronically monitored, and (b) a certificate signed by an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order that the statement relates to the whereabouts of the offender at the dates and times shown in the statement.
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(2)The statement and certificate mentioned in subsection (1) shall, when produced at a hearing, be evidence, until the contrary is shown, of the facts set out in them.
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(3)Neither the statement nor the certificate mentioned in subsection (1) shall be admissible in evidence unless a copy of both has been served on the offender prior to the hearing.
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Temporary release of prisoners.
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108.—(1) A direction in respect of a person aged 18 years or more may be subject to a condition restricting the person’s movements to such extent as the Minister thinks fit and specifies in the direction and those restrictions may be monitored electronically in accordance with subsection (4).
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(2)Without prejudice to the generality of subsection (1), a direction may include provision— (a) requiring the person to be in such place or places as may be specified for such period or periods in each day or week as may be specified, or (b) requiring the person not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified, or both, but the Minister may not, under paragraph (a), require the person to be in any place or places for a period or periods of more than 12 hours in any one day.
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(3)A direction shall not be subject to a condition which restricts the movements of a person in accordance with subsection (2)(a) without the consent of the owner of, or any adult person habitually residing at, the place or places concerned or, as the case may be, the person in charge of the place or places concerned.
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(4)Where the restrictions on a person’s movements imposed by a condition in a direction are to be monitored electronically, the direction shall include— (a) a provision making an authorised person responsible for monitoring the person’s compliance with the condition and the condition referred to in paragraph (b), and (b) a condition that the person shall, either continuously or for such periods of not more than 6 months as may be specified have an electronic monitoring device attached to his or her person for the purpose of enabling the monitoring of his or her compliance with the condition restricting his or her movements to be carried out.
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(5)A condition shall not be imposed under subsection (1) or (4)(b) unless the person concerned agrees to comply with it, but the absence of such agreement shall not confer an entitlement on that person to be released pursuant to a direction.
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Documentary evidence in relation to prisoners on temporary release.
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109.—(1) In any proceedings for an offence under section 6
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(2)of the Criminal Justice Act 1960 evidence of the presence or absence of the person in or from a particular place at a particular time may, subject to the provisions of this section, be given by the production of a document or documents being— (a) a statement produced automatically or otherwise by a device, prescribed by regulations made under section 111 , by which the person’s whereabouts were electronically monitored, and (b) a certificate signed by an authorised person who is responsible under section 108
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(4)for monitoring the offender’s compliance with the condition in the direction that the statement relates to the whereabouts of the person at the dates and times shown in the statement.
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(2)The statement and certificate mentioned in subsection (1) shall, when produced at a hearing, be evidence, until the contrary is shown, of the facts set out in them.
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(3)Neither the statement nor the certificate mentioned in subsection (1) shall be admissible in evidence unless a copy of both has been served on the person prior to the hearing.
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Amendment of section 2(1) of Criminal Justice Act 1960.
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110.— Section 2(1) of the Criminal Justice Act 1960 is amended by the insertion of “(including, if appropriate, any condition under section 108 of the Criminal Justice Act 2006)” after “subject to such conditions, as may be specified in the direction”.
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Regulations regarding electronic monitoring devices.
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111.— The Minister may prescribe by regulations the types of electronic monitoring device that may be used for the purpose of monitoring— (a) the compliance of offenders with a requirement under section 102 , and (b) the compliance of persons with section 108
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(4).
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Electronic monitoring.
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112.— The Minister may, with the consent of the Minister for Finance, make such arrangements, including contractual arrangements, as he or she considers appropriate with such persons as he or she thinks fit for the monitoring of— (a) the compliance of offenders with restriction on movement orders, or (b) the compliance of persons with a condition imposed under section 108
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(4)in directions in respect of such persons, or both.
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PART 11
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Civil Proceedings in Relation to Anti-Social Behaviour Interpretation and application of this Part.
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113.—(1) In this Part— “ behaviour warning” has the meaning assigned to it under section 114 ; “ civil order” means an order described in section 115
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(1); “ senior member of the Garda Síochána” means a member of the Garda Síochána not below the rank of a superintendent.
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(2)For the purposes of this Part, a person behaves in an anti-social manner if the person causes or, in the circumstances, is likely to cause, to one or more persons who are not of the same household as the person— (a) harassment, (b) significant or persistent alarm, distress, fear or intimidation, or (c) significant or persistent impairment of their use or enjoyment of their property.
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(3)This Part does not apply— (a) in respect of behaviour of a person who is under the age of 18 years at the time the behaviour takes place, (b) to any behaviour of a person that takes place before this section comes into force, or (c) to any act or omission of a person in respect of which criminal proceedings have been instituted against that person.
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Behaviour warnings.
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114.—(1) Subject to subsection (5), a member of the Garda Síochána may issue a behaviour warning to a person who has behaved in an anti-social manner.
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(2)The behaviour warning may be issued orally or in writing and, if it is issued orally, it shall be recorded in writing as soon as reasonably practicable and a written record of the behaviour warning shall be served on the person personally or by post.
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(3)The behaviour warning or, if it is given orally, the written record of it shall— (a) include a statement that the person has behaved in an anti-social manner and indicate what that behaviour is and when and where it took place, (b) demand that the person cease the behaviour or otherwise address the behaviour in the manner specified in the warning, and (c) include notice that— (i) failure to comply with a demand under paragraph (b), or (ii) issuance of a subsequent behaviour warning, may result in an application being made for a civil order.
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(4)The member of the Garda Síochána referred to in subsection (1) may require the person to give his or her name and address to the member for purposes of the behaviour warning or the written record of it.
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(5)A behaviour warning may not be issued more than one month after the time that— (a) the behaviour took place, or (b) in the case of persistent behaviour, the most recent known instance of that behaviour took place.
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(6)Subject to subsection (7), a behaviour warning remains in force against the person to whom it is issued for 3 months from the date that it is issued.
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(7)If an application is made under section 115 in respect of the person, the behaviour warning remains in force against the person until the application is heard or otherwise determined by the District Court.
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Civil orders.
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115.—(1) On application made in accordance with this section, the District Court may make an order (a “civil order”) prohibiting the respondent from doing anything specified in the order if the court is satisfied that— (a) the respondent has behaved in an anti-social manner, (b) the order is necessary to prevent the respondent from continuing to behave in that manner, and (c) having regard to the effect or likely effect of that behaviour on other persons, the order is reasonable and proportionate in the circumstances.
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(2)The court may impose terms or conditions in the civil order that the court considers appropriate.
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(3)An application for a civil order may only be made by a senior member of the Garda Síochána and shall be made— (a) on notice to the respondent, and (b) in the district court district in which the respondent resides at the time.
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(4)Before making the application, the senior member of the Garda Síochána must be satisfied that either or both of the following conditions have been met: (a) the respondent has been issued a behaviour warning and has not complied with one or more of the demands of that warning; (b) the respondent has been issued 3 or more behaviour warnings in less than 6 consecutive months.
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(5)The respondent in an application under subsection (1) may not at any time be charged with, prosecuted or punished for an offence if the act or omission that constitutes the offence is the same behaviour that is the subject of the application and is to be determined by the court under subsection (1)(a).
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(6)Unless discharged under subsection (7), a civil order remains in force for no more than the lesser of the following: (a) two years from the date the order is made; (b) the period specified in the order.
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(7)The court may vary or discharge a civil order on the application of the person subject to that order or a senior member of the Garda Síochána.
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(8)An applicant under subsection (7) shall give notice of the application— (a) if the applicant is the person subject to the civil order, to a senior member of the Garda Síochána in the Garda Síochána district in which the applicant resides, or (b) if the applicant is a senior member of the Garda Síochána, to the person who is the subject of the civil order.
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(9)The standard of proof in proceedings under this section is that applicable to civil proceedings.
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(10)The jurisdiction conferred on the District Court by this section may be exercised as follows: (a) in respect of subsections (1) and (2), by a judge of the District Court for the time being assigned to the district court district in which the respondent resides at the time the application is made; (b) in respect of subsection (7), by a judge of the District Court for the time being assigned to the district court district in which the person subject to the civil order resides at the time the application is made.
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Appeals against a civil order.
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116.—(1) A person against whom a civil order has been made may, within 21 days from the date that the order is made, appeal the making of the order to the Circuit Court.
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(2)An appellant under subsection (1) shall give notice of the appeal to a senior member of the Garda Síochána in the Garda Síochána district in which the appellant resides.
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(3)Notwithstanding the appeal, the civil order shall remain in force unless the court that made the order or the appeal court places a stay on it.
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(4)An appeal under this section shall be in the nature of a rehearing of the application under section 115 and, for this purpose, subsections (1), (2) and (5) of that section apply in respect of the matter.
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(5)If on appeal under this section, the appeal court makes a civil order, the provisions of section 115
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(6)to (8) apply in respect of the matter.
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(6)Notwithstanding the appeal period described in subsection (1), the Circuit Court may, on application by the person subject to the civil order, extend the appeal period if satisfied that exceptional circumstances exist which warrant the extension.
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(7)The standard of proof in proceedings under this section is that applicable to civil proceedings.
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(8)The jurisdiction conferred on the Circuit Court by this section may be exercised as follows: (a) in respect of section 115
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(1)and (2) as those provisions apply to the Circuit Court under subsection (4) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the appellant under this section resides at the time the appeal is commenced; (b) in respect of section 115
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(7)as it applies to the Circuit Court under subsection (5) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the person subject to the civil order resides at the time the application is made; (c) in respect of subsection (6) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the person subject to the civil order resides at the time the application is made.
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Offences.
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117.—(1) A person commits an offence who— (a) fails to give a name and address when required to do so under section 114
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(4)or gives a name or address that is false or misleading in response to that requirement, or (b) without reasonable excuse, does not comply with a civil order to which the person is subject.
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(2)A member of the Garda Síochána may arrest a person without warrant if the member has reasonable grounds to believe that the person has committed an offence under subsection (1)(b).
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(3)A person who commits an offence under subsection (1) is liable, on summary conviction, to the following: (a) for an offence under subsection (1)(a), a fine not exceeding €500; (b) for an offence under subsection (1)(b), a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both.
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Legal aid.
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118.—(1) Subject to subsection (2), a person who is the subject of an application for a civil order may be granted a certificate for free legal aid (in this Part referred to as a “legal aid (civil order) certificate”) in preparation for and representation at the hearing of— (a) the application, (b) an application by the person to vary or discharge a civil order, (c) any appeal by the person against the making of the civil order, and (d) any proceedings in the High Court or Supreme Court arising out of the making of the application, the appeal or any subsequent proceedings.
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(2)A legal aid (civil order) certificate may not be granted under subsection (1) unless it appears to the court hearing the application for the certificate that— (a) the means of the person concerned are insufficient to enable that person to obtain legal aid, and (b) by reason of the gravity of the behaviour alleged to be anti-social or of exceptional circumstances, it is essential in the interests of justice that the person should have legal aid in preparation for and representation at the hearing concerned.
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(3)A person who is granted a legal aid (civil order) certificate is entitled— (a) to free legal aid in preparation for and representation at the hearing of the application for a civil order and any proceedings referred to in subsection (1)(b), (c) and (d), and (b) to have, in such manner as may be prescribed, (i) a solicitor assigned to the person in relation to the application for the civil order or any application to vary or discharge it, (ii) a solicitor assigned to the person in relation to any other such proceedings, and (iii) if the court granting the certificate considers it appropriate, a counsel assigned to the person in relation to proceedings referred to in subparagraph (ii).
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(4)If a legal aid (civil order) certificate is granted, any fees, costs or other expenses properly incurred in preparation for and representation at the proceedings concerned shall, subject to regulations under section 119 , be paid out of moneys provided by the Oireachtas.
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(5)A person applying for a legal aid (civil order) certificate may be required by the court granting the certificate to furnish a written statement of the person’s means.
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(6)A person who, for the purpose of obtaining free legal aid under this section, whether for himself or herself or for some other person, knowingly makes a false or misleading statement or representation either orally or in writing, or knowingly conceals any material fact, commits an offence and is 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)On conviction of a person for an offence under this section, the court by which the person is convicted may, if in the circumstances of the case it thinks fit, order the person to pay to the Minister the whole or part of any sum paid under subsection (4) in respect of the free legal aid in relation to which the offence was committed, and any sum so paid to the Minister shall be paid into and disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.
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Regulations (legal aid).
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119.—(1) The Minister may make regulations for carrying section 118 into effect.
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(2)The regulations may, in particular, prescribe any of the following: