The Criminal Justice (Mutual Assistance) Act 2008 gives effect to a number of international agreements within the EU and otherwise in respect of mutual assistance in criminal investigation matters. It gives effect to a number of agreements at EU level, including
- the Convention on Mutual in Criminal Matters 2000,
- certain protocols to that Convention,
- Agreement with certain EFTA countries,
- Schengen Convention,
- Co-operation Agreement with the Swiss Confederation,
- A number of EU protocols and decisions,
- Certain United Nation Conventions including against transnational organised crime and corruption,
- Mutual agreement on legal assistance between the EU and US and related bilateral agreement on mutual assistance in criminal matters between the United States and Ireland.
The legislation is divided into a number of parts and is very considerable in length.
- Part 2 deals with the provision of information and monitoring arrangements in relation to financial transactions. It gives effect to the 2001 protocol in relation to financial transactions for criminal investigation purposes.
- Part 3 deals with the provision of assistance between EU States in relation to the interception of telecommunications for criminal investigations.
- Part 4 deals with freezing, confiscation and forfeiture of property pursuant to Council framework decision.
- Part 5 deals with evidence. There is provision for transfer of prisoners to give evidence to assist in criminal investigations and for evidence to be given by television and remote links. It provides for identification evidence in criminal investigations inside and outside the State.
- Part 6 deals with assistance including service of documents, restitution of articles obtained by criminal means to the rightful owners and provision for control, deliveries within the State.
- Part 7 deals with mutual assistance in criminal matters between the United States and Ireland.
Grounds for Refusal
Mutual assistance may be refused where the Minister considers that granting it would be likely to prejudice the sovereignty, security and interests of the State or would be contrary to public policy. It may be refused where there are reasonable grounds for believing that the request is made for the purpose of prosecuting or punishing a person on the basis of sex, race, religion, ethnic origin, nationality, political opinion, sexual orientation or nationality or where a person’s position may be prejudiced on any of these grounds.
If there are reasonable grounds for believing that providing assistance may result in a person being subject to torture or that it would otherwise contravene the European Convention on Human Rights, assistance is to be refused. Other grounds for assistance are where the request is not in accordance with the relevant international instrument.
The Minister for Foreign Affairs, after consultation with the Minister for Justice may designate a State other than an EU State for the purpose of mutual assistance.
Legal Assistance Requests
There are procedural provisions for mutual legal assistance requests. The relevant international treaty or instrument defines the manner in which the request is made and the requirements relating to protection, disclosure and transmission of evidence and information. The Act applies only to requests made after the relevant international instrument has entered into force. The questions must indicate the relevant international instrument under which they are based.
The central authority may accept request and supporting related documents as evidence of the matters mentioned, unless it has information to the contrary. It may seek additional information from the requesting authority, as is necessary to enable a decision to be made.
The Minister may postpone action on a request because a request might prejudice criminal proceedings or in a criminal investigation. Before deciding to refuse or postpone a request, the Minister is to consult the authority from whom the request is received for the purpose of considering whether it may be granted subject to conditions. The Minister must inform the authority from whom the request is received if it is not possible to comply or if significant delays in complying with the request is likely.
Exchange of Evidence & Information
There are provisions for transmission of evidence to designated States. A judge, member of An Garda Síochána, officer of the Revenue Commissions etc., will supply a certificate, affidavit or verifying document for transmission of the evidence concerned. Where it consists of documentation or the original copies are transmitted, where it consists of other items, the item itself or a description, property or representation may be transmitted.
The central authority is the Minister for Justice, Equality and Law Reform. The central authority has responsibility for receiving, transmitting and dealing with a request under the legislation other than in relation to interception of telecommunications. It is responsible for cooperating in accordance with the international instruments with the responsible authorities in designated States in relation to requests.
Without prejudice to the Act, Garda Síochána, DPP, Revenue may spontaneously exchange information in matters with the competent state authority in a designated State. This does not require a request.
Account Information Order
Part 2 gives effect to the EU 2001 Protocol on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime and Financing of Terrorism, relating to be sharing of information and monitoring of banking transaction for criminal investigations.
A member of an Garda Síochána of the rank of Inspector or above may apply to a High Court judge ex parte for an account information order an or account monitoring order for the purpose of an investigation. The judge must be satisfied the Gardai are investigating whether a specified person has committed an offence or possesses, or controls assets derived from criminal conduct.
There must be reasonable grounds for believing that the financial institution has information required for the purpose of the investigation. There is provision for variation of orders.
The DPP may send an account information or monitoring order, which relates to an account in a financial institution in a designated State to the central authority for transmission to the competent authority concerned along with a request for the information to be supplied.
The DPP may make the request directly to the competent authority of a designated State, requesting information relating to an account information or account monitoring order. The request may be made if the Director has reasonable grounds for believing that the financial institution in the designated state may have information for the purpose of investigation and that it is in the public interest that it be disclosed. There is provision for return of information when it is no longer required.
A designated State may request information in relation to accounts held in the State by a person who is the subject of criminal investigation in that designated State. The Minister on receiving a compliant request from the designated State may authorise a member of An Garda Síochána to apply to the High Court for an account information or account monitoring order.
The High Court judge may make an order where he is satisfied that an offence under the law of the designated State has been committed, that the person concerned is the subject of an investigation into the offence, that the request is in accordance with the international instrument and there are reasonable grounds for believing that the financial institution may have information for the purpose of the investigation.
The Garda Síochána may inform the requesting authority that it may be appropriate to undertake other investigations.
There is provision for variation and discharge of an account information and monitoring order. It may be made on application by a member of An Garda Síochána.
Interception of Telecommunications Messages
Part 3 deals with the interception of telecommunication messages. An application may be made where the Minister has given authorisation for the interception to be made under the 1993 legislation. Persons specified in the authorisation must be present at the State or in a Member State and technical assistance is needed from the Member State to perform the interception.
The Minister may cause the application to be made to the relevant authority in a Member State for the interception and immediate transmission to An Garda Síochána of telecommunication messages to or from particular address or for the interception and recording of messages.
There is provision for inward request to State for interception. It may be made to the State for a lawful interception order. A warrant must be issued in the Member State. The request must be made to the Minister, for interception and immediate transmission of telecommunication messages or recording to the relevant authority in that state. The specified person must be present in any State and the State’s assistance must be required to affect the interception.
When the State to receives an inward request for interception and transmission of specified telecommunications messages, the Minister may authorise the interception provided the relevant conditions are complied with. He may only authorise interception, where the conduct under investigation, would have, if occurring in the State constitute a serious offence which would give rise to and justify the making of an interception authorisation.
The State may make a declaration under the Convention to the effect that the immediate transmission of interceptions is not possible. In this case the State will comply with the request for interception, recording and subsequent transmission of messages on being provided with information set out in the Convention.
The Minister may make the interception order in accordance with the domestic 1993 legislation. Where the Minister has authorised interception and the telecommunications address of the person is being used in a Member State and technical assistance of that State is required to intercept, the Member States will be notified by the Minister as soon as the State becomes aware of the fact that the person concerned is in that territory.
While the authority of the Member State is considering whether to consent to a interception, any interception already made may be continued. However, material already intercepted may not be used unless agreed with the other State for the purpose of taking urgent measures to prevent immediate and serious threat to public security.
When an interception has been authorised in a Member State and the telecommunication address of the person concerned is being used in the State, there may be an incoming notice to the State corresponding to the equivalent notification outwards. In the reverse situation above, the Minister is to make a decision on the grant, allowance, continuation or termination of interception within specified time frame.
The request for an authorisation is to be granted as if it would be given domestically under the domestic 1993 Act. The provisions of the 1993 Act generally are applied to the authorisations under this Act.