Criminal Justice (Mutual Assistance) (Amendment) Act 2015

Criminal Justice (Mutual Assistance) (Amendment) Act 2015 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2015 Criminal Justice (Mutual Assistance) (Amendment) Act 2015 Criminal Justice (Mutual Assistance) (Amendment) Act 2015 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 40 of 2015 CRIMINAL JUSTICE (MUTUAL ASSISTANCE) (AMENDMENT) ACT 2015 CONTENTS Section 1. Interpretation 2. Amendment of section 2 of Principal Act 3. Amendment of section 31(1) of Principal Act 4. Amendment of section 32(6) (a) of Principal Act 5. Amendment of section 34(1) of Principal Act 6. Amendment of section 35(6) of Principal Act 7. Amendment of section 38 of Principal Act 8. Amendment of section 44 of Principal Act 9. Amendment of section 45(1) of Principal Act 10. Amendment of section 48 of Principal Act 11. Amendment of section 49 of Principal Act 12. External confiscation orders (designated states other than member states) 13. External confiscation orders (member states) 14. Refusal to confiscate 15. Postponement of confiscation 16. Variation or discharge of confiscation co-operation orders 17. Variation or discharge of external confiscation orders from member states 18. Termination of external confiscation orders from member states

, Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime4 , Council Decision 2010/616/EU of 7 October 2010 on the conclusion of the Agreement between the European Union and Japan on mutual legal assistance in criminal matters5 ; to give further effect to Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial6 ; for those purposes, to amend the Criminal Justice (Mutual Assistance) Act 2008 , the Criminal Justice Act 1994 , the Criminal Justice (Joint Investigation Teams) Act 2004 and the Garda Síochána Act 2005 ; and to provide for related matters. [1 st December, 2015] Be it enacted by the Oireachtas as follows:

Interpretation 1. In this Act— “Minister” means the Minister for Justice and Equality; “Principal Act” means the Criminal Justice (Mutual Assistance) Act 2008 .

Amendment of section 2 of Principal Act 2. Section 2 of the Principal Act is amended— (a) in subsection (1) — (i) in the definition of “international instrument”— (I) by the insertion of the following paragraph after paragraph (c): “(ca) the Agreement with Japan;”, (II) in paragraph (e), by the substitution of “2003 Framework Decision” for “Framework Decision”, (III) by the insertion of the following paragraphs after paragraph (e): “(ea) the 2005 Framework Decision; (eb) the 2006 Framework Decision;”, (IV) by the insertion of the following paragraph after paragraph (gb) (inserted by section 128 (b) of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 : “(gc) the 2008 Council Decision (special intervention units); (gd) the 2009 Council Decision;”, and (V) by the substitution of the following paragraph for paragraph (m): “(m) a bilateral agreement between the State and a designated state, or a multilateral agreement between the State and other designated states, for the provision of such assistance; and”, (ii) in the definition of “member state” (amended by section 128 (c) of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 ), by the substitution of the following paragraph for paragraph (a): “(a) a member state of the European Union (other than the State), for the purposes of mutual assistance under the provisions of the 2000 Convention, 2001 Protocol, Articles 49 and 51 of the Schengen Convention, 2003 Framework Decision, 2005 Framework Decision, 2005 Council Decision, Article 7 of the 2008 Council Decision, Article 1 of the 2009 Agreement with Iceland and Norway insofar as it applies Article 7 of the 2008 Council Decision in bilateral relations between Iceland or Norway and each member state of the European Union (other than the State) and in relations between Iceland and Norway, 2008 Council Decision (special intervention units), and”, (iii) by the deletion of the definition of “Framework Decision”, and (iv) by the insertion of the following definitions: “ ‘Agreement with Japan’ means the Agreement between the European Union and Japan on mutual legal assistance in criminal matters, done at Brussels on 30 November 2009 and at Tokyo on 15 December 2009; ‘2008 Council Decision (special intervention units)’ means Council Decision 2008/617/JHA of 23 June 2008 on the improvement of cooperation between special intervention units of the member states of the European Union in crisis situations7 ; ‘2009 Council Decision’ means Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime 8

; ‘2010 Council Decision’ means Council Decision 2010/616/EU of 7 October 2010 on the conclusion of the Agreement between the European Union and Japan on mutual legal assistance in criminal matters9 ; ‘2003 Framework Decision’ means Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence10 ; ‘2005 Framework Decision’ means Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of mutual recognition to financial penalties11 ; ‘2006 Framework Decision’ means Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders12 ;”, and (b) in section 2(6) — (i) by the insertion of the following paragraph after paragraph (c): “(ca) Schedule 3A sets out the English text of the Agreement with Japan,”, (ii) in paragraph (e), by the substitution of “2003 Framework Decision” for “Framework Decision”, (iii) by the insertion of the following paragraphs after paragraph (e): “(ea) Schedule 5A sets out the English text of the 2005 Framework Decision, (eb) Schedule 5B sets out the English text of the 2006 Framework Decision,”, (iv) by the insertion of the following paragraphs after paragraph (g): “(ga) Schedule 7A sets out the English text of the 2008 Council Decision (special intervention units), (gb) Schedule 7B sets out the English text of the 2009 Council Decision.”.

Amendment of section 31(1) of Principal Act 3. Section 31(1) of the Principal Act is amended by— (a) the substitution of the following definition for the definition of “certificate”: “ ‘certificate’ means— (a) the certificate provided for in Article 9 of the 2003 Framework Decision, the standard form of which is set out in the Annex to that Framework Decision, or (b) the certificate provided for in Article 4 of the 2006 Framework Decision, the standard form of which is set out in the Annex to that Framework Decision, as the context requires;”, (b) the insertion of the following definition: “ ‘competent authority’— (a) in relation to a member state, means the authority or authorities determined by that state in accordance with Article 3 of the 2006 Framework Decision to be the competent authority of that member state, and (b) in relation to a designated state other than one referred to in paragraph (a), means the authority or authorities determined by that state in accordance with the relevant international instrument to be the competent authority of that designated state;”, and (c) the substitution of the following paragraph for paragraph (a) of the definition of “realisable property”: “(a) in relation to a freezing co-operation order, a confiscation co-operation order or an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state made in respect of specified property, the property specified in the order, and”.

Amendment of section 32(6)(a) of Principal Act 4. Section 32(6)(a) of the Principal Act is amended by the substitution of “section 33” for “section 33(4)”.

Amendment of section 34(1) of Principal Act 5. Section 34(1) of the Principal Act is amended by the substitution of “2003 Framework Decision” for “Framework Decision”.

Amendment of section 35(6) of Principal Act 6. Section 35(6) of the Principal Act is amended by the substitution of “2003 Framework Decision” for “Framework Decision”.

Amendment of section 38 of Principal Act 7. Section 38 of the Principal Act is amended— (a) in subsection (1), by the insertion of “or, in the case of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, that external confiscation order” after “confiscation co-operation order”, and (b) in subsection (4), by the substitution of “any order referred to in subsection (1) ” for “any confiscation co-operation order”.

Amendment of section 44 of Principal Act 8. Section 44 of the Principal Act is amended by the substitution of the following paragraph for paragraph (b): “(b) where the order is for the purpose of subsequent confiscation of property— (i) in the case of confiscation on foot of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, until the execution of that external confiscation order or until the Central Authority has informed the competent authority in the designated state concerned of one of the matters under paragraphs (c), (d), (e), (f) and (g) of section 51G, and (ii) in any other case, until a confiscation co-operation order is made or the request for such an order is refused and the refusal is upheld on any appeal against it, or”.

Amendment of section 45(1) of Principal Act 9. Section 45(1) of the Principal Act is amended by the insertion of “the Central Authority or” after “on application by”.

Amendment of section 48 of Principal Act 10. Section 48 of the Principal Act is amended— (a) in subsection (2), by the substitution of “this Part” for “Part 5”, (b) in subsection (3)(a), by the substitution of “2003 Framework Decision” for “Framework Decision”.

Amendment of section 49 of Principal Act 11. Section 49 of the Principal Act is amended by— (a) the insertion of the following subsection after subsection (2): “(2A) Where the Director of Public Prosecutions sends a request to the Central Authority under subsection (2) the Director of Public Prosecutions shall inform the Central Authority— (a) if there is a risk that the amount that may be realised in pursuance of such a request is greater than the amount ordered to be paid under the confiscation order, stating that there is that risk and requesting that the amount to be realised not exceed the amount specified in the request, (b) if all or part of the confiscation order has been executed in the State or in another designated state, stating the amount of the proceeds of realisation and requesting that the amount to be realised in the designated state concerned not exceed the difference between the amount specified in the confiscation order and those proceeds of realisation, (c) if the defendant has made any voluntary payment in respect of the confiscation order after it was transmitted, stating the amount of that voluntary payment and requesting that the amount to be realised in the designated state concerned not exceed the difference between the amount specified in the confiscation order and the amount paid voluntarily, or (d) if the confiscation order ceases to be enforceable, stating that fact.”, and (b) the insertion of the following subsection after subsection (4): “(4A) Transmission of documents referred to in subsections (2) and (2A) shall be by any means capable of producing a written record under conditions which allow the competent authority or competent authorities concerned to establish the documents’ authenticity.”.

External confiscation orders (designated states other than member states) 12. The Principal Act is amended by the substitution of the following section for section 51: “51. (1) The Central Authority, on receipt of an external confiscation order and accompanying documents transmitted by or on behalf of a court in a designated state other than a member state, may cause an application to be made to the High Court for an order (a ‘confiscation co-operation order’) for the confiscation of realisable property to which the external confiscation order relates and that is in the State.

External confiscation orders (member states) 13. The Principal Act is amended by the insertion of the following section after section 51: “51A. (1) Where the Central Authority receives an external confiscation order that has been transmitted by or on behalf of a court in a designated state that is a member state, it shall, subject to subsection (2), transmit the external confiscation order to the Director of Public Prosecutions for execution under this Act.

Refusal to confiscate 14. The Principal Act is amended by the insertion of the following section after section 51A: “51B. (1) On application made in accordance with section 51(1) or 51A(2) and without prejudice to section 3, the High Court shall refuse to make a confiscation co-operation order in respect of an external confiscation order,or shall make an order refusing the execution of an external confiscation order made by or on behalf of a court in a designated state that is a member state, as the case may be, if— (a) subject to subsection (4), the conduct which resulted in the making of the external confiscation order is not an offence to which the relevant international instrument relates, (b) there is immunity or privilege under the law of the State which makes it impossible to make the confiscation co-operation order or execute the external confiscation order, as the case may be, (c) it is immediately clear from the information provided in a certificate that compliance with the external confiscation order in relation to the offence that resulted in the making of that order would infringe the ne bis in idem principle, (d) the defendant did not appear in person at the trial resulting in the external confiscation order, unless the certificate from the court in the designated state concerned states that— (i) he or she was notified of the time when, and place at which, the proceedings were to take place, or he or she was otherwise aware of the scheduled proceedings, and he or she was informed that an external confiscation order could be made even if he or she did not appear, (ii) he or she was aware of the proceedings concerned and was represented at those proceedings by a lawyer whom he or she has appointed, (iii) after having been served with the external confiscation order and expressly informed of his or her right to a retrial or an appeal in which he or she would have been able to participate and which could have led to the original decision being reversed, he or she— (I) expressly stated that he or she did not contest the external confiscation order, or (II) did not request the retrial or appeal within the time limit for exercising that right, or (iv) in a case where he or she was not personally served with the external confiscation order, an undertaking has been given by the designated state concerned that he or she will be personally served with the external confiscation order without delay and will be expressly informed of his or her right to a retrial or an appeal in which he or she will be able to participate and which could lead to a reversal of the order, and of the time limit for exercising that right,

(e) the criminal conduct concerned was either committed outside the territory of the designated state concerned or committed wholly or partly in the State, or (f) the enforcement of the confiscation co-operation order, or the execution of the external confiscation order, as the case may be, is statute barred.

Postponement of confiscation 15. The Principal Act is amended by the insertion of the following section after section 51B: “51C. (1) Where an application is made in accordance with section 51(1) or 51A(2), the High Court may order the postponement of confiscation under this Chapter until such time as the Court considers reasonable, where to proceed with the confiscation, on foot of, as the case may be, a confiscation co-operation order or an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, might prejudice an ongoing criminal investigation in the State.

Variation or discharge of confiscation co-operation orders 16. The Principal Act is amended by the insertion of the following section after section 51C: “51D. (1) Where a confiscation co-operation order has been made, the High Court, on application by the Central Authority or any person affected by the confiscation co-operation order— (a) may vary or discharge it, (b) shall vary it to the extent of any amount in respect of which there has already been confiscation in any state, if the High Court is satisfied that there has been such confiscation where— (i) the person concerned has provided evidence that there has been such confiscation, in part, in that other state, and (ii) the High Court has consulted with the competent authority in the designated state where the external confiscation order concerned was made, and that competent authority has confirmed that there has been confiscation in that other state and the extent of that confiscation, and (c) shall discharge it if the High Court is satisfied that there is no need for the confiscation co-operation order where— (i) the person concerned has provided evidence that there has been confiscation in any state, the High Court has consulted with the competent authority in the designated state where the external confiscation order was made and that competent authority has confirmed that that external confiscation order has been satisfied by confiscation in that other state, or (ii) it has been informed by the competent authority in the designated state where the external confiscation order concerned was made that that order has ceased to be enforceable.

Variation or discharge of external confiscation orders from member states 17. The Principal Act is amended by the insertion of the following section after section 51D: “51E. (1) A person who claims to be affected by an external confiscation order that has been transmitted by or on behalf of a court in a designated state that is a member state to the Central Authority and then transmitted to the Director of Public Prosecutions under section 51A for execution in the State may make an application to the High Court to vary or discharge that external confiscation order.

Termination of external confiscation orders from member states 18. The Principal Act is amended by the insertion of the following section after section 51E: “51F. Where an external confiscation order has been transmitted by or on behalf of a court in a designated state that is a member state to the Central Authority and the Central Authority has transmitted it to the Director of Public Prosecutions under section 51A for execution in the State, the execution of that external confiscation order shall be terminated by order of the High Court only if a request to terminate it has been received from the competent authority of the designated state concerned.”.

Central Authority to inform competent authority 19. The Principal Act is amended by the insertion of the following section after section 51F: “51G. The Central Authority shall inform, by any means capable of producing a written record, the competent authority in the designated state that transmitted an external confiscation order of the following: (a) where the external confiscation order was transmitted by or on behalf of a court in a designated state that is a member state, when the Central Authority receives the external confiscation order; (b) where the external confiscation order was transmitted by or on behalf of a court in a designated state that is a member state, when the execution of the external confiscation order has been completed; (c) where it is impossible to execute the external confiscation order under section 51A because, after consultation with that competent authority, the realisable property the subject of that order has been destroyed or cannot be found in the location indicated in the documents accompanying that order or that location has not been indicated in a sufficiently precise manner; (d) where the High Court refuses under section 51B to make a confiscation co-operation order, or makes an order refusing the execution of an external confiscation order made by or on behalf of a designated state that is a member state because, after consultation with that competent authority, the realisable property the subject of that external confiscation order has been destroyed or cannot be found in the location indicated in the documents accompanying the external confiscation order or that location has not been indicated in a sufficiently precise manner; (e) where there has been postponement of confiscation ordered in respect of that external confiscation order under section 51C, or the grounds for such a postponement have ceased and an order has therefore been made under subsection (4) of that section; (f) where there has been variation or discharge in respect of that external confiscation order under section 51D or 51E; or (g) where the execution of the external confiscation order has been terminated under section 51F.”.

Amendment of section 53 of Principal Act 20. Section 53 of the Principal Act is amended— (a) in subsection (1)(a), by the insertion of “an external confiscation order or” before “a confiscation co-operation order”, (b) by the addition of the following subsections after subsection (6): “(7) Where property recovered by the execution of an external confiscation order or confiscation co-operation order is not a sum of money, the receiver may— (a) cause the property recovered to be transferred to the state concerned, or (b) cause the property recovered to be sold and, subject to subsection (8), the proceeds transferred to the state concerned.

Amendment of section 56 of Principal Act 21. Section 56 of the Principal Act is amended by the addition of the following subsection: “(5) Where realisable property is the subject of an external confiscation order and a request under section 75, whether or not transmitted from the same designated state, the request under section 75 shall have priority over the external confiscation order.”.

Amendment of section 57(b) of Principal Act 22. Section 57(b) of the Principal Act is amended by the insertion of “an external confiscation order or” after “shall be construed as references to”.

Application of provisions on enforcement and realisation to execution of external confiscation order from member states 23. The Principal Act is amended by the insertion of the following section in Chapter 3 of Part 4 after section 57: “57A. Sections 52, 54, 55, 56 and 57 apply in relation to external confiscation orders transmitted by or on behalf of courts in designated states that are member states (except where the execution of such orders is subject to refusal, postponement, variation or discharge, or termination under sections 51B, 51C, 51E and 51F respectively) as they apply in relation to confiscation co-operation orders.”.

Financial penalties 24. The Principal Act is amended by the insertion of the following Part after Part 4: “Part 4A Financial Penalties Interpretation 60A. In this Part— ‘appropriate court’, in relation to an external financial penalty order, means a court in the State that has jurisdiction to impose a financial penalty of the same amount as the sum mentioned in the external financial penalty order; ‘certificate’ means the certificate provided for in Article 4 of the 2005 Framework Decision, the standard form of which is provided for in the Annex to that Framework Decision; ‘competent authority’, in relation to a member state, means— (a) the issuing judicial authority in the member state, or (b) the authority in the member state that the General Secretariat of the Council of the European Union has, in accordance with Article 2 of the 2005 Framework Decision, been informed is to be the competent authority in that member state; ‘executing state’, in relation to a financial penalty order, means the member state to which the order is transmitted for enforcement; ‘external financial penalty order’ means a financial penalty order that is made by an issuing judicial authority in an issuing state; ‘financial penalty’, in relation to a defendant, means an obligation for the defendant to pay, further to a conviction for an offence, in an issuing state or the State— (a) a fine, costs or any other sum of money to the issuing state or the State, as the case may be, (b) a sum as compensation for the benefit of a victim of the offence, or (c) a sum of money to a public fund or victim support organisation; ‘financial penalty order’, means an order of— (a) a court in the State imposing a financial penalty, or (b) an issuing judicial authority in an issuing state imposing a financial penalty that is enforceable under the law of that state; ‘issuing judicial authority’, in relation to an external financial penalty order, means a judicial authority in an issuing state, as defined in the law of that state, which makes, validates or in any way confirms the external financial penalty order; ‘issuing state’, in relation to an external financial penalty order, means the member state in which that order was made.

Request for execution of financial penalty order in member state 60B. (1) If a financial penalty order relates to a defendant who has property or income, or is normally resident, in a member state, the registrar or clerk of the court concerned shall, on request of the prosecuting authority and subject to any conditions that may be specified by rules of court, give to the Central Authority— (a) a duly authenticated copy of the order, and (b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

Transmission to State of external financial penalty order 60C. (1) An external financial penalty order may be transmitted by the competent authority of an issuing state to the Central Authority with a request for its execution.

External financial penalty orders 60D. (1) Where the Central Authority receives an external financial penalty order that has been transmitted by a competent authority in an issuing state, it shall proceed to the execution of that order as though it were an order of an appropriate court.

Refusal to execute external financial penalty order 60E. (1) On application made under section 60D(2) and without prejudice to section 3, the appropriate court shall make an order refusing the execution of an external financial penalty order made by an issuing judicial authority if— (a) a financial penalty order has been made in the State against the defendant in respect of the conduct which resulted in the making of the external financial penalty order, (b) a financial penalty order has been made in a state other than the issuing state or the State, in respect of the conduct which resulted in the making of the external financial penalty order, and has been executed, (c) the conduct which resulted in the making of the external financial penalty order is not an offence in the State, (d) the execution of the financial penalty order is statute barred in the State, (e) the criminal conduct concerned was either committed outside the territory of the issuing state concerned or committed wholly or partly in the State, (f) there is immunity or privilege under the law of the State which makes it impossible to execute the external financial penalty order, (g) the defendant could not have been convicted in the State of an offence in respect of the conduct which resulted in the making of the external financial penalty order because of his or her age, (h) the defendant did not appear in person at the proceedings resulting in the external financial penalty order, unless the certificate from the issuing judicial authority states that— (i) he or she was summonsed to attend in person the proceedings, or he or she was otherwise made aware, by official notification, of the time when, and the place at which, those proceedings were to take place, and he or she was informed that an external financial penalty order could be made even if he or she did not appear, (ii) he or she was aware of the proceedings concerned and was represented at those proceedings by a lawyer whom he or she appointed, (iii) after having been served with the external financial penalty order and expressly informed of his or her right to a retrial or an appeal at which he or she would have been able to participate (and which would have been an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could have led to a reversal of the original decision, he or she— (I) expressly stated that he or she did not contest the external financial penalty order, or (II) did not request the retrial or appeal within the time limit for exercising that right,

or (iv) where he or she was not personally served with the external financial penalty order, an undertaking has been given by the issuing state concerned that he or she will be personally served with the external financial penalty order without delay and will be expressly informed of his or her right to a retrial or an appeal in which he or she will be able to participate (and which will be an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could lead to a reversal of the order, and of the time limit for exercising that right, or (i) the amount of the financial penalty the subject of the external financial penalty order is less than €70.

Variation of amount payable under external financial penalty order 60F. On application made under section 60D(2) and without prejudice to section 3, the appropriate court may make an order— (a) where that court is satisfied that, had the conduct which was the subject of the conviction on which that external financial penalty order was made been carried out in the State, the maximum amount of a penalty that could have been imposed was less than the sum mentioned in that order, reducing the amount that the defendant is to pay to that maximum amount, (b) where the court is satisfied that there has been partial payment of the sum mentioned in the external financial penalty order, reducing the amount that the defendant is to pay to the difference between the sum mentioned in the order and the amount already paid, or (c) where the court is satisfied that, in all the circumstances, the defendant should be excused from paying all or part of the sum mentioned in the external financial penalty order, ordering that the amount be so reduced.

Termination of execution of external financial penalty order 60G. Where an external financial penalty order has been transmitted to the Central Authority for execution in the State, the execution of the external financial penalty order shall terminate as soon as may be after the Central Authority is informed by the competent authority of the issuing state concerned that that external financial penalty order has ceased to be enforceable or has been withdrawn by that issuing state or where the court is satisfied on an application made under section 60D(2) that, in all the circumstances, the defendant should be excused from paying all or part of the sum mentioned in the external financial penalty order, ordering that the amount be so reduced.

Central Authority to inform competent authority 60H. The Central Authority shall inform, by any means capable of producing a written record, the competent authority in the issuing state that transmitted an external financial penalty order of the following: (a) the Central Authority has received the external financial penalty order, as soon as may be after the Central Authority receives it; (b) an order refusing the execution of the financial penalty order under section 60E, or reducing the amount to be paid on foot of it under section 60F, has been made, as soon as may be after it is made; (c) an order terminating the execution of the external financial penalty order has been made, as soon as may be after it is made; (d) the execution of the external financial penalty order is complete, as soon as may be after it is complete; or (e) imprisonment or another alternative sanction has been imposed by a court in the State on the defendant in accordance with Article 10 of the 2005 Framework Decision, as soon as may be after it is imposed.

Amounts to accrue to Exchequer 60I. An amount paid on foot of an external financial penalty order shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct, unless an agreement is made between the Central Authority and the competent authority in the issuing state concerned that all or part of that amount will be paid to that issuing state.”.

Amendment of section 67 of Principal Act 25. Section 67 of the Principal Act is amended— (a) in subsection (1) (c), by the substitution of “practicable” for “possible”, (b) in subsection (3), by the substitution of “practicable” for “possible”, (c) in subsection (4) (d), by the substitution of “practicable” for “possible”.

Amendment of section 68(2)(d) of Principal Act 26. Section 68(2)(d) of the Principal Act is amended by the substitution of “practicable” for “possible”.

Amendment of section 69(a) of Principal Act 27. Section 69(a) of the Principal Act is amended by the substitution of “practicable” for “possible”.

Amendment of section 74 of Principal Act 28. Section 74 of the Principal Act is amended by the insertion of the following subsections after subsection (12): “(12A) Where the evidence sought is already in the possession of the Garda Síochána, or where material referred to in subsection (9) is obtained on foot of a warrant under this section, the Commissioner of the Garda Síochána shall arrange for the evidence to be transmitted, to the requesting authority— (a) without delay, (b) in accordance with the request, and (c) in accordance with any directions that the Minister may give. (12B) Any evidential material taken away by a member of the Garda Síochána under this section may be dealt with in accordance with the request.”.

Amendment of section 75 of Principal Act 29. Section 75 of the Principal Act is amended by the insertion of the following subsection after subsection (8): “(8A) Where the material sought is already in the custody of the Garda Síochána or has been obtained on foot of an order under subsection (10), the Commissioner of the Garda Síochána shall arrange for the material to be transmitted to the requesting authority— (a) without delay, (b) in accordance with the request, and (c) in accordance with any directions that the Minister may give.”.

Powers of officers of Revenue Commissioners 30. The Principal Act is amended by the insertion of the following section after section 75: “75A. Where a request under section 74 or 75 is in relation to a revenue offence, the powers of a member of the Garda Síochána may also be exercised by an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section, and sections 74 and 75 apply, subject to the following and any other necessary modifications: (a) a reference to the ‘Commissioner of the Garda Síochána’ shall be read, in relation to such a request, as a reference to the ‘Revenue Commissioners’; (b) a reference to a ‘member’, in relation to the Garda Síochána, shall be read, in relation to such a request, as including a reference to an ‘officer of the Revenue Commissionersauthorised by them in writing to exercise the powers conferred by this section’; (c) a reference to evidence being ‘in the possession of the Garda Síochána’ shall be read, in relation to such a request, as including a reference to its being ‘in the possession of the Revenue Commissioners’; (d) a reference to ‘a member of the Garda Síochána not below the rank of inspector’ shall be read, in relation to such a request, as including a reference to ‘an officer of the Revenue Commissioners not below the rank of Higher Executive Officer’; (e) a reference to material being ‘in the custody of the Garda Síochána’ shall be read as including a reference to its being ‘in the custody of the Revenue Commissioners’.”.

Special intervention units 31. The Principal Act is amended by the insertion of the following Part after section 94: “Part 7A Special Intervention Units Interpretation 94A. In this Part— ‘competent authority’, in relation to the State, means the Minister and, in relation to a member state, means the authority designated by that member state to be the competent authority of that member state for the purposes of the 2008 Council Decision (special intervention units); ‘crisis situation’ means any situation in which the competent authority or the competent authority of a member state has reasonable grounds to believe that, as a result of a criminal offence, there exists a serious direct physical threat to persons, property, infrastructure or institutions in the State or in that member state; ‘special intervention unit’— (a) if and when operating in a member state, has the meaning assigned to it by section 94B, (b) if and when operating in the State, means a special intervention unit consisting of a law enforcement unit of another member state which is specialised in the control of a crisis situation.

Special intervention unit 94B. For the purpose of providing assistance under section 94E, the Garda Commissioner may establish a special intervention unit, where required for the control of a crisis situation, from such members of the Garda Síochána as the Garda Commissioner considers appropriate.

Request to member state for assistance of special intervention unit in dealing with crisis situation 94C. (1) Where the competent authority is satisfied that— (a) as a result of the commission of a criminal offence, a crisis situation exists in the State, and (b) there are reasonable grounds for believing that it is in the public interest to seek the assistance of a special intervention unit from a member state, and (c) the Government has agreed to the request for the assistance of a special intervention unit, the competent authority may request the competent authority of that member state to provide the assistance of a special intervention unit in accordance with the 2008 Council Decision (special intervention units).

Request to State for assistance of special intervention unit in dealing with crisis situation 94D. (1) In accordance with the 2008 Council Decision (special intervention units), the competent authority shall consider a request for assistance in dealing with a crisis situation received from the competent authority of a member state.

Operation of special intervention unit 94E. (1) A special intervention unit formed under section 94B shall be established for a specific purpose and a limited period of time which may be extended, if the circumstances so require, for such period or periods as may be agreed by the competent authority and the other competent authority concerned.

Eurojust national member 32. The Principal Act is amended by the insertion of the following section after section 95: “95A. The Minister may, in accordance with the 2009 Council Decision, designate an authority or authorities as the Eurojust national member who may transmit and receive information in accordance with that Council Decision.”.

Insertion of Schedules 5A, 5B, 7A, 7B and 7C to Principal Act 33. The Principal Act is amended by the insertion— (a) after Schedule 3 of Schedule 3A as set out in Schedule 1 to this Act, (b) after Schedule 5 of Schedule 5A as set out in Schedule 2 to this Act, (c) after Schedule 5A (inserted by paragraph (b)) of Schedule 5B as set out in Schedule 3 to this Act, (d) after Schedule 7 of Schedule 7A as set out in Schedule 4 to this Act, (e) after Schedule 7A (inserted by paragraph (d)) of Schedule 7B as set out in Schedule 5 to this Act.

Amendment of section 65 of Criminal Justice Act 1994 34. Section 65 of the Criminal Justice Act 1994 is amended by the insertion of the following subsection after subsection (4): “(4A) The court may order compensation to be paid under this section to a person with an interest in property affected by an order made under section 35, 51, or 60 or executed under section 51A or 60D of the Criminal Justice (Mutual Assistance) Act 2008 — (a) notwithstanding that he or she is not the person who was the subject of the relevant investigation, and (b) only if the court is satisfied— (i) that there has been some serious default on the part of a person concerned in the carrying out of that order on behalf of the State, and (ii) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of that order.”.

Amendment of section 51(1) of Garda Síochána Act 2005 35. Section 51(1) of the Garda Síochána Act 2005 is amended— (a) in paragraph (a), by the substitution of “organisation,” for “organisation, or”, (b) in paragraph (b), by the substitution of “such duties, or” for “such duties.”, and (c) by the insertion of the following paragraph after paragraph (b): “(c) to participate in a special intervention unit, within the meaning of Part 7A (inserted by section 31 of the Criminal Justice (Mutual Assistance) (Amendment) Act 2015) of the Criminal Justice (Mutual Assistance) Act 2008 , for the control of a crisis situation occurring in the territory of a member state.”.

Repeals 36. The following provisions are repealed: (a) section 88(2) of the Principal Act, and (b) section 2

Short title, collective citation and commencement 37. (1) This Act may be cited as the Criminal Justice (Mutual Assistance) (Amendment) Act 2015.

SCHEDULE 1 Text of Agreement Between the European Union and Japan on Mutual Legal Assistance in Criminal Matters “Schedule 3A Text of Agreement Between the European Union and Japan on Mutual Legal Assistance in Criminal Matters AGREEMENT between the European Union and Japan on mutual legal assistance in criminal matters THE EUROPEAN UNION, and JAPAN DESIRING to establish more effective cooperation between the European Union Member States and Japan in the area of mutual legal assistance in criminal matters, DESIRING that such cooperation will contribute to combating crime, REAFFIRMING their commitment to respect for justice, principles of the rule of law and democracy, and judicial independence, HAVE AGREED AS FOLLOWS:

Article 1Object and purpose

Article 2Definitions

For the purpose of this Agreement: (a) the term ‘Contracting Parties’ means the European Union and Japan; (b) the term ‘Member State’ means a Member State of the European Union; (c) the term ‘State’ means a Member State or Japan; (d) the term ‘items’ means documents, records and other articles of evidence; (e) the term ‘property’ means assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to or interest in such assets; (f) the term ‘instrumentalities’ means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence; (g) the term ‘proceeds’ means any property derived from or obtained, directly or indirectly, through the commission of a criminal offence; (h) the term ‘freezing or seizure’ means temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority; and (i) the term ‘confiscation’, which includes forfeiture where applicable, means a penalty or a measure, ordered by a court or other judicial authority following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property.

Article 3Scope of assistance

Assistance shall include the following: (a) taking testimony or statements; (b) enabling the hearing by videoconference; (c) obtaining items, including through the execution of search and seizure; (d) obtaining records, documents or reports of bank accounts; (e) examining persons, items or places; (f) locating or identifying persons, items or places; (g) providing items in the possession of the legislative, administrative or judicial authorities of the requested State as well as the local authorities thereof; (h) serving documents and informing a person of an invitation to appear in the requesting State; (i) temporary transfer of a person in custody for testimony or other evidentiary purposes; (j) assisting in proceedings related to freezing or seizure and confiscation of proceeds or instrumentalities; and (k) any other assistance permitted under the laws of the requested State and agreed upon between a Member State and Japan.

Article 4Designation and responsibilities of Central Authorities

Each State shall designate the Central Authority that is the authority responsible for sending, receiving and responding to requests for assistance, the execution of such requests or their transmission to the authorities having jurisdiction to execute such requests under the laws of the State. The Central Authorities shall be the authorities listed in Annex I to this Agreement.

Article 5Communication between Central Authorities

Article 6Authorities competent to originate requests

The authorities which are competent under the laws of the States to originate requests for assistance pursuant to this Agreement are set out in Annex II to this Agreement.

Article 7Authentication

Documents transmitted by a State pursuant to this Agreement which are attested by the signature or seal of a competent authority or the Central Authority of the State need not be authenticated.

Article 8Requests for assistance

Article 9Language

A request and any documents attached thereto shall be accompanied by a translation into an official language of the requested State or, in all or, in urgent cases, into a language specified in Annex III to this Agreement.

Article 10Execution of requests

Article 11Grounds for refusal of assistance

Article 12Costs

Article 13Limitations on use of testimony, statements, items or information

Article 14Transport, maintenance and return of items

Article 15Taking of testimony or statements

Article 16Hearing by videoconference

Article 17Obtaining of items

Article 18Bank accounts

Article 19Examination of persons, items or places

Article 20Locating or identifying persons, items or places

The requested State shall make its best efforts to locate or identify persons, items or places.

Article 21Providing items in possession of the legislative, administrative, judicial or local authorities

Article 22Service of documents and informing a person of an invitation

Article 23Safe conduct

Article 24Temporary transfer of persons in custody

Article 25Freezing or seizure and confiscation of proceeds or instrumentalities

Article 26Spontaneous exchange of information

Article 27Relation to other instruments

Article 28Consultations

Article 29Territorial application

Article 30Status of annexes

Annexes to this Agreement form an integral part of this Agreement. Annexes I, II and III may be modified by mutual consent in writing of the Contracting Parties without amendment of this Agreement.

Article 31Entry into force and termination

IN WITNESS WHEREOF, the undersigned Plenipotentiaries have signed this Agreement.

DONE in duplicate, in the English and Japanese languages, both texts being equally authentic, and signed at Brussels on the thirtieth day of November 2009, and at Tokyo on the fifteenth day of December 2009. This Agreement shall also be drawn up in the Bulgarian, Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, and the Contracting Parties shall authenticate those language versions by an exchange of diplomatic notes.

ANNEX I THE CENTRAL AUTHORITIES The Central Authorities of the Contracting Parties are the following authorities: the Kingdom of Belgium: the Federal Public Service Justice, International Criminal Cooperation Department; the Republic of Bulgaria: the Ministry of Justice; the Czech Republic:

Ireland: the Minister for Justice, Equality and Law Reform or a person designated by the Minister; the Hellenic Republic: the Ministry of Justice, Transparency and Human Rights; the Kingdom of Spain: the Ministry of Justice, the Subdirectorate General for international legal cooperation; the French Republic: the Ministry of Justice, the Office for International Mutual Assistance in Criminal Matters, Directorate for Criminal Matters and Pardons; the Italian Republic: the Ministry of Justice, Department of Judicial Affairs - Directorate General of Criminal Matters; the Republic of Cyprus: the Ministry of Justice and Public Order; the Republic of Latvia:

Romania: the Ministry of Justice and Civil Liberties, the General Directorate for Cooperation, Directorate for International Law and Treaties, Division for International Judicial Cooperation in Criminal Matters; the Republic of Slovenia: the Ministry of Justice, the Directorate for international cooperation and international legal assistance; the Slovak Republic:

Japan: the Minister of Justice and the National Public Safety Commission or persons designated by them.

ANNEX II With regard to Article 6 of this Agreement, the authorities which are competent under the laws of the States to originate requests for assistance pursuant to this Agreement are set out below: the Kingdom of Belgium: the judicial authorities: to be understood as meaning members of the judiciary responsible for administering the law, examining magistrates and members of the Department of Public Prosecution; the Republic of Bulgaria: the Supreme Cassation Prosecutor’s Office of the Republic of Bulgaria for pre-trial cases of criminal proceedings and the courts of the Republic of Bulgaria for pending cases in trial phase of criminal proceedings; the Czech Republic: public prosecutors and courts of the Czech Republic; the Kingdom of Denmark:

Ireland: the Director for Public Prosecutions; the Hellenic Republic: the Public Prosecutor’s Office at the Court of Appeal; the Kingdom of Spain: criminal court magistrates and judges, and public prosecutors; the French Republic:

Romania: courts and the prosecutor’s offices of the courts; the Republic of Slovenia:

Japan: Courts, Presiding Judges, Judges, Public Prosecutors, Public Prosecutor’s Assistant Officers, and Judicial Police Officials.

ANNEX III With regard to Article 9 of this Agreement, the Member States and Japan accept the following languages: the Kingdom of Belgium: Dutch, French and German in all cases and English in urgent cases; the Republic of Bulgaria: Bulgarian in all cases and English in urgent cases; the Czech Republic: Czech in all cases and English in urgent cases; the Kingdom of Denmark: Danish in all cases and English in urgent cases; the Federal Republic of Germany: German in all cases and English in urgent cases; the Republic of Estonia: Estonian and English in all cases;

Ireland: English and Irish in all cases; the Hellenic Republic: Greek in all cases and English in urgent cases; the Kingdom of Spain: Spanish in all cases; the French Republic: French in all cases; the Italian Republic: Italian in all cases and English in urgent cases; the Republic of Cyprus: Greek and English in all cases; the Republic of Latvia: Latvian in all cases and English in urgent cases; the Republic of Lithuania: Lithuanian in all cases and English in urgent cases; the Grand Duchy of Luxembourg: French and German in all cases and English in urgent cases; the Republic of Hungary: Hungarian in all cases and English in urgent cases; the Republic of Malta: Maltese in all cases; the Kingdom of the Netherlands: Dutch in all cases and English in urgent cases; the Republic of Austria: German in all cases and English in urgent cases; the Republic of Poland: Polish in all cases; the Portuguese Republic: Portuguese in all cases and English or French in urgent cases;

Romania: Romanian, English or French in all cases. With regard to longer documents, Romania reserves the right, in any specific case, to require a Romanian translation or to have one made at the expense of the requesting State; the Republic of Slovenia: Slovenian and English in all cases; the Slovak Republic: Slovak in all cases; the Republic of Finland: Finnish, Swedish and English in all cases; the Kingdom of Sweden: Swedish, Danish or Norwegian in all cases, unless the authority dealing with the application otherwise allows in the individual case; the United Kingdom of Great Britain and Northern Ireland: English in all cases;

Japan: Japanese in all cases and English in urgent cases. However, Japan reserves the right, in any specific urgent case, to require translation into Japanese with regard to the request from the requesting State which does not accept translation into English under this Annex.

ANNEX IV With regard to paragraph 1(b) of Article 11 of this Agreement, ‘one Member State’ referred to in this paragraph is the Portuguese Republic.

With regard to paragraph 2 of Article 11 of this Agreement, ‘two Member States’ referred to in this paragraph are the Republic of Austria and the Republic of Hungary.”.

SCHEDULE 2 Text of Council Framework Decision 2005/214/JHA of 24 February 2005 on the Application of Mutual Recognition to Financial Penalties “Schedule 5A Text of 2005 Framework Decision COUNCIL FRAMEWORK DECISION 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 31(a) and 34(2)(b) thereof, Having regard to the initiative of the United Kingdom of Great Britain and Northern Ireland, the French Republic and the Kingdom of Sweden 1 , Having regard to the opinion of the European Parliament 2 , Whereas:

Article 1Definitions

For the purposes of this Framework Decision: (a) ‘decision’ shall mean a final decision requiring a financial penalty to be paid by a natural or legal person where the decision was made by: (i) a court of the issuing State in respect of a criminal offence under the law of the issuing State; (ii) an authority of the issuing State other than a court in respect of a criminal offence under the law of the issuing State, provided that the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters; (iii) an authority of the issuing State other than a court in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law, provided that the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters; (iv) a court having jurisdiction in particular in criminal matters, where the decision was made regarding a decision as referred to in point (iii) ; (b) ‘financial penalty’ shall mean the obligation to pay: (i) a sum of money on conviction of an offence imposed in a decision; (ii) compensation imposed in the same decision for the benefit of victims, where the victim may not be a civil party to the proceedings and the court is acting in the exercise of its criminal jurisdiction; (iii) a sum of money in respect of the costs of court or administrative proceedings leading to the decision; (iv) a sum of money to a public fund or a victim support organisation, imposed in the same decision.

A financial penalty shall not include: — orders for the confiscation of instrumentalities or proceeds of crime, — orders that have a civil nature and arise out of a claim for damages and restitution and which are enforceable in accordance with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 5 ; (c) ‘issuing State’ shall mean the Member State in which a decision within the meaning of this Framework Decision was delivered; (d) ‘executing State’ shall mean the Member State to which a decision has been transmitted for the purpose of enforcement.

Article 2Determination of the competent authorities

Article 3Fundamental rights

This Framework Decision shall not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty.

Article 4Transmission of decisions and recourse to the central authority

Article 5Scope

The Council shall consider, in the light of the report submitted to it pursuant to Article 20(5), whether the list should be extended or amended. The Council shall consider the issue further at a later stage on the basis of a report on the practical application of the Framework Decision established by the Commission within 5 years after the date mentioned in Article 20(1).

Article 6Recognition and execution of decisions

The competent authorities in the executing State shall recognise a decision which has been transmitted in accordance with Article 4 without any further formality being required and shall forthwith take all the necessary measures for its execution, unless the competent authority decides to invoke one of the grounds for non-recognition or non-execution provided for in Article 7.

Article 7Grounds for non-recognition and non-execution