Documents for service outside State
A court in this country may issue a document to be served on a person present in another state in the context of criminal proceedings. It provides for the translation of the document if required. If the document requires the recipient to appear in proceedings, a penalty for nonappearance will not be referred to in the document, and also sets out what information must accompany the document.
Noncompliance with a requirement specified in the document does not constitute contempt of court and the person may not be compelled to attend the relevant proceedings unless the document is served on the person in the State. A person who is in the State as a defendant in compliance with a requirement of the document may not be acted against in respect of an offence committed before arriving in the State other than an offence specified in the document. The Act makes provision for the cessation of immunity.
Mode of service
a document referred to may be served by post. It may be transmitted to a designated state with a request for it to be served by a method other than by post in accordance with the relevant international instrument. The Act lays out the conditions under which service by a method other than post may be requested. Such a document may be served in a state other than a designated state by arrangement by the Minister.
Service of documents in State
The 2008 Act applies to a request for service of a document requiring a person to appear as a defendant or witness in criminal proceedings in a designated state and to any other document issued by a court or authority in that state in relation to criminal proceedings. The Act provides for the document to be served by post, unless the request specifies that personal service is required.
The Act provide for personal service of the document if requested and for translation of the document if required. The Act sets out the conditions under which personal service can be undertaken. The Commissioner shall cause the document and the notice provided for in the Act to be served and send proof of service to the Minister for transmission to the requesting authority. If service is not possible, the Minister shall be informed, indicating the reason for nonservice.
A person served with a document is under no obligation under the law of the State to comply with it. A document requiring a person to appear as a defendant or witness in criminal proceedings in a state may not be served until an assurance is given that the person will not be acted against, should he or she appear, in respect of any conduct taking place prior to his or her departure from the State (other than that already specified in the document in the case of a defendant).
Conditions for the cessation of immunity provide that a notice must accompany a document served under the Act and that the notice shall state that there is no obligation on the person to comply. The notice will also indicate that under the law of the designated state the person may not have the same rights and privileges as apply in the State in relation to criminal proceedings. The Act provides for the translation, if required, of that notice.
The purpose of Chapter 2 is to give effect to the provisions in Article 8 of the 2000 Convention and Article 12 of the Second Additional Protocol.
Restitution of stolen property from designated state
An order for restitution may be made under the Criminal Justice (Theft and Fraud Offences) Act, 2001 with regard to property in a designated state, without prejudice to the rights of any valid third parties in relation to the property concerned. On receipt of an application from a person entitled to recover the property, a copy of the order shall be sent by the Central Authority to the appropriate authority in the designated state. The Act sets out the information that must accompany the request.
Request to State for restitution of stolen property
The 2008 Act provides for a request to be made for property in the State obtained by criminal means to be placed at the disposal of the requesting authority in order for it to be returned to its owner. The request must be in writing and set out the information that must accompany such a request.
Action on request
The 2008 Act that on receipt of a request which meets the criteria set out at 9, the Minister may cause an application to be made to the District Court for a restitution order for the property concerned. The Act provides for notice of the application to be given to any person affected or appearing to be affected by such an order unless that person’s whreabouts cannot reasonably be ascertained.
Order for restitution
on receipt of an application, the District Court, if satisfied the requirements have been complied with and that the property is in the possession of the person specified, may order that the property be delivered to the member of the Garda Siochana specified in the application.
An order may also be made for the delivery of property in the custody of the Garda Siochana. The Act sets out the circumstances in which a restitution order may not be made. An order will not be made where the property is required as evidence in criminal or civil proceedings or if the person claiming to own the property has not been given an opportunity to make representations as to why the order should not be made. The Act clarifies that a judge of the District Court in a district where either some or all of the property is located may make an order.
The purpose of this Chapter is to give effect to Article 12 of the 2000 Convention and Article 18 of the Second Additional Protocol which deals with controlled deliveries.
Controlled delivery in designated state.
A request may be made to a designated state to allow a delivery to be made in that state by specified persons or persons of a specified description, including members of the Garda Siochana and customs and excise officers. any such request must include details of the offence to which the controlled delivery relates.
Controlled delivery in State
The 2008 Act provides for a request to be made by a designated state for a controlled delivery to be made in the State. Specified persons or persons of a specified description from that designated state may be permitted to participate in the operation. Details of the offence to which the controlled delivery relates must be included in the request.
The Act outlines the conditions to be met for the request to be granted. The competent authority must be satisfied that the controlled delivery is being made for the purposes of an investigation into an offence and that there are reasonable grounds for believing that a controlled delivery is in the public interest. if the controlled delivery is concerned with the importation of illegal drugs, the delivery will be regulated in accordance with the agreed procedures specified which apply between customs and excise authorities, the Garda Siochana and the Naval Service.
If the controlled delivery is concerned with a revenue offence, customs and excise officers shall control the delivery. Under the Act deliveries relating to other offences shall be under the control of the Garda Siochana. certain actions requested by a person from the designated state may be taken if such actions are possible. The Act states that the Memorandum of Understanding and the Operational Protocol referred to in the Act have been placed in the Oireachtas Library.
Amendment of Garda Socha´ na Act 1989
The 2008 Act enables a member of the Garda Siochana to serve outside the State in the making of a controlled delivery. The amendment to deals with the registration of births and deaths occurring outside the State while the member is serving outside the State in such a capacity. The Act is a technical provision.
Application of Criminal Justice (Joint Investigation Teams) Act 2004 in relation to controlled deliveries
The 2008 Act provides for provisions of the Criminal Justice (Joint Investigations Teams) Act, 2004 to apply to a person participating in a controlled delivery. The relevant provisions relate to criminal and civil liability and the use of information.
MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE STATE AND THE UNITED STATES OF AMERICA
The purpose of this Part is to enable effect to be given in Irish law to the Ireland US Bilateral Treaty on Mutual Legal Assistance, signed in 2001, as amended by the EUUS Agreement on Mutual Legal Assistance, signed in 2003.
Application in State of Ireland US Treaty
The 2008 Act provides for the Ireland US Treaty to have the force of law in the State and for judicial notice to be taken of it. The Act provides for the mutual assistance provisions of this Act, including the making, variation and discharge of orders, to have effect between the State and the USA.
The Joint Investigation Teams Act, 2004 applies to a joint investigation team established under the Ireland US Treaty, as amended by the EUUS Agreement. The Act provides for data protection and specifies that Article 7 of the Treaty dealing with the use of personal data does not override the relevant provision of the Data Protection Act, 1988. a court may take into account the Explanatory Note and the EUUS Agreement, as appropriate, when interpreting provisions of the EUUS Agreement or of the Ireland US Treaty.
PART 9 MISCELLANEOUS
Amendment of the Criminal Justice (Joint Investigation Teams) Act 2004
The 2008 Act amends the Criminal Justice (Joint Investigations Team) Act, 2004 by including provision for officers of an authority of a country designated by the Minister under of this Act to participate in joint investigation teams. The purpose of the amendment is to allow participants in joint investigation teams from countries which are designated for mutual assistance purposes.
Disclosure prejudicing investigation
This provision is based on 8 of the Criminal Justice Act, 1994. Where a request is made relating to a criminal investigation, any person who knows or suspects that such an investigation is underway and discloses any information likely to prejudice the investigation is guilty of an offence. It specifies the penalties to apply to a person found guilty in this regard. It is a defence if a person can prove that he or she did not know or suspect that the information disclosed could prejudice the investigation, or if s/he had reasonable excuse to disclose the information or had lawful authority in this regard.
Liability of officers of body corporate
The 2008 Act is based on the Criminal Justice Act, 1994. where an offence under this Act is committed by a corporate body and it is proved that a director, manager, secretary or other officer, or anybody acting as such, consented to, assisted in or allowed the offence to occur, then that person is guilty of an offence and may be proceeded against. It states that the 2008 Act also applies to members of a body corporate. The Act extends the provisions to unincorporated bodies.
Evidence in proceedings (general)
A request or supporting document, an order or warrant or a record of such an order or warrant, which is signed on behalf of the authority making the request, is admissible without proof as evidence of the matters mentioned therein. The Act provides for a translation of a document in the 2008 Act to be admissible as evidence.
A document purporting to be a copy of a document listed, certified as a copy and bearing a seal of the authority concerned, is to be considered a true copy. a document purporting to be the text of a reservation or declaration under an international instrument and signed by an officer of the Department of Foreign Affairs is admissible as proof of the reservation or declaration.
where criminal proceedings or a criminal investigation are underway in a designated state and a competent authority of that state requests the Minister to take provisional measures to preserve evidence, maintain an existing situation or protect endangered legal interests, an application may be made to the High Court for the requested measures to be granted.
the High Court may grant such provisional measures as it has power to grant. the Court may specify the period for which the provisional measures shall last and any conditions or limitations to apply. The High Court may refuse to grant the measures sought if jurisdictional considerations make it inexpedient to do so.
Amendment of Criminal Justice Act, 1994
The 2008 Act amends certain provisions of the Criminal Justice Act, 1994. The principal amendments are the substitution of ‘‘freezing’’ for ‘‘restraint’’ in the relevant sections; the extension of the making of confiscation orders to indictable offences irrespective of whether the person concerned has been convicted of the offence on indictment; the conversion to euros of a table relating the amount outstanding under a confiscation order to the period of imprisonment applying; the extension of the application of freezing orders to a member state of the European Union and clarification that revenue offences include offences relating to taxes, duties, customs and exchange regulation under the meaning of the 1994 Act. 3 of the 1994 Act is amended by the addition of a provision permitting members of the Garda Siochana to take away or be given access to documents and to make and take away copies of such documents, which may be retained as evidence.
Personal data protection
The relevant instrument applies in relation to personal data obtained under the terms of the instrument. The Act clarifies that this is without prejudice to the Data Protection Act, 1988. the Data Protection Acts, 1998 and 2003 apply to the data concerned.
It enables regulations to be made by the Minister to give effect to this Act.