EU Evidence Taking

Evidence from person in designated state

The 2008 Act provides a procedure for obtaining evidence abroad for the purpose of criminal proceedings or a criminal investigation in the State. It is based on provisions contained in the Criminal Justice Act 1994.

It provides that, where it appears to a judge of any court that a criminal investigation or criminal proceedings are underway, a letter of request may be issued seeking assistance in having specified evidence taken in a designated state for use in the proceedings or investigation. either the Director of Public Prosecutions or a person charged in criminal proceedings may apply for a letter of request.

The letter of request will be sent to the Central Authority for transmission to the appropriate authority. the Director of Public Prosecutions may transmit a letter of request directly. The Act sets out what must be included in such a request. The request shall include a statement that the evidence is needed in criminal proceedings or a criminal investigation, a description of the conduct concerned, and any other available information that may assist in complying with the request.

Evidence obtained under the Act must only be used for the purpose specified in the request unless the relevant authority consents otherwise and provides for the return of the evidence when it is no longer required, unless the contrary is specified. A statement  taken in accordance with a request and certified on behalf of the appropriate authority is admissible in proceedings and is to be considered accurate and that a document purporting to be a certificate, signed by or on behalf of the relevant court, tribunal or authority, is to be accepted as certification, unless the contrary is shown.

It provides that in considering whether to exclude evidence obtained on foot of a letter of request, a court must examine whether the law of the other country allowed the person to be legally represented and cross examined when the evidence was being taken and also other factors which may differ in relation to the taking of such evidence from those which would apply in this country in similar proceedings.

The Director of Public Prosecutions may issue a letter of request to obtain evidence for criminal proceedings or a criminal investigation where such evidence will be given by a witness in the proceedings, or any proceedings instituted after the relevant investigation has taken place.

Evidence for use in designated state

The Act provides for the taking of evidence in the State for use in criminal proceedings or a criminal investigation in another country.

It applies to the taking of evidence in the State from a witness on foot of a request for assistance from a designated state for the purpose of a criminal investigation or criminal proceedings. on receipt of a request for assistance the Minister may request the President of the District Court to nominate a judge of the District Court to receive the evidence and send him or her a copy of the request and any related documents.

Under the Act an assurance must be received from the requesting authority that any evidence supplied will only be used for the purpose permitted by the relevant international instrument unless the nominated judge or the witness agrees otherwise. The nominated judge has the power of the District Court in criminal proceedings and that s/he may direct that the evidence not be heard in public to protect either a person or information.

The judge is obliged to inform the witness of his or her rights in relation to privilege as set out. The Act provides for the giving of evidence by means of a television link. The Act provides for penalties for the noncompliance of a person summoned to give evidence. The penalty is €2,500 or imprisonment for a period not exceeding six months or both on summary conviction if a reasonable excuse cannot be made. The Act clarifies that the Bankers’ Books Evidence Act, 1879 applies to proceedings in and the Act prohibits any order for costs in proceedings.

Privilege of witnesses

A person cannot be compelled to give any evidence in proceedings which she or he could not be compelled to give in criminal proceedings in this State or in the state seeking the evidence. The privilege of not being compelled to give evidence in criminal proceedings in another country does not apply once the requesting authority concedes the claim of the person to be exempt in that country.

Should the claim for privilege not be conceded, the person may be required to give evidence, but if a court in the state concerned upholds the claim, the evidence cannot be sent to the requesting authority. a person cannot be compelled to give evidence under the Act in his or her capacity as a civil or public servant or if to do so might prejudice national security.

A certificate signed by or on behalf of the Minister stating that the giving of evidence would be prejudicial to the security of the State is admissible as proof of that fact. It clarifies the meaning of references to giving evidence.

Evidence of prisoners

Transfer of prisoner to give evidence or assist criminal investigation in State

The provisions in the 2008 Act are based on 4 of the Criminal Justice Act, 1994. They have been amended to take account of the provision in Article 9 of the 2000 Convention (which deals with the temporary transfer of persons held in custody for the purposes of an investigation) and Article 13 of the Second Additional Protocol (dealing with the temporary transfer of detained persons to the requested party).

The 2008 Act empowers the Minister, at the request of the Director of Public Prosecutions or a person charged in proceedings, to issue a warrant for a prisoner to be transferred to the State. Such a warrant may be issued where a witness order or summons has been issued in criminal proceedings in respect of a prisoner or where it appears to the Minister desirable that the prisoner assist by his or her presence or be identified in the proceedings.

No warrant shall be issued unless the prisoner consents in writing to be transferred. The  warrant will be transmitted to and from the relevant Central Authority with the request for the transfer of the prisoner. The warrant will constitute the necessary authority for the transfer, reception, detention and return of the prisoner.

A prisoner is deemed to be in lawful custody while in the State and that he or she may be arrested without warrant should he or she escape. The Act allows for a person other than a member of the Garda Siochana to have custody of a prisoner  and to be deemed a member.

Certain legal provisions relating to nonnationals within the State do not apply to a prisoner unless the warrant ceases to have effect while the prisoner is in the State. a prisoner who is transferred to the State  may not be prosecuted or otherwise restricted in respect of his or her personal freedom in respect of any offence which was committed before his or her arrival in the State.

Transfer of prisoner

Broadly similar provisions feature in 3 of the Criminal Justice Act, 1994. Amendments have been made to take account of Article 9 of the 2000 Convention and Article 13 of the Second Additional Protocol.

On receipt of a request, the Minister may issue a warrant for a prisoner to be transferred to another country to give evidence, assist in or be identified in a criminal investigation or criminal proceedings in that state, provided that the prisoner gives written consent to being transferred.

Where in the Minister’s view it is inappropriate for the prisoner to act for himself or herself, consent must be given by an appropriate person on the prisoner’s behalf. the warrant will constitute the necessary authority for the handing over, detention and return of the prisoner in due course to continue serving his or her sentence. a warrant will not be issued unless the requesting state is in a position to give an assurance that if the prisoner is transferred there he or she will not be prosecuted, sentenced, detained or otherwise restricted in his or her personal freedom for any offence against the law of that state committed before the prisoner’s departure from the State.

A period spent in custody under the warrant forms part of the overall period of detention or imprisonment served by the prisoner. A prisoner is deemed to be in lawful custody while being taken to or from a prison under the warrant and that he or she may be arrested without warrant should he or she escape. The Act allows for a person other than a member of the Garda Siochana to have custody of a prisoner under the Act and to be deemed a member.

Evidence through television link

Where criminal proceedings have been instigated in the State against a person, a witness is in a designated state and it is not desirable or possible for the witness to give evidence in person. Under the Act the Director of Public Prosecutions or the accused may apply to a judge to issue a letter of request for television link facilities to be provided in the other country in order that evidence may be provided via a television link.

The application may be granted if the judge is satisfied that it is not desirable or possible for the person to give evidence in person. The Act sets out the information to be provided in the document which issues with the letter of request. It provides for transmission of the request by the Central Authority to a court, tribunal or other appropriate authority.

The name of the judge conducting the hearing shall be communicated by the Central Authority as soon as it becomes available, if it is not known at the time of the issue of the letter of request to provide television link facilities. The Act allows for the accused to examine the witness at the hearing.

Evidence given through a live television link must be video recorded and that the videorecording or an edited version of it is admissible at the trial of the offence, unless the trial judge considers that its admissibility would be prejudicial to the interests of justice.

Provisions of relevant international instruments covered by this Act but which are not incorporated in the Act concerning hearings via live television link have effect in the State in relation to a hearing. The Act makes provision for penalties to apply in the event that a person giving evidence knowingly makes a false statement which is material to the proceedings. A fine not exceeding €2,500 or imprisonment for a period of not in excess of six months or both will apply on summary conviction. A fine not exceeding €10,000 or imprisonment for a period of not more than five years or both will apply on conviction or indictment. Proceedings for an offence encompassed by the Act will be treated as having been committed in the State.

Request for evidence

The 2008 Act applies when a request is received for a person present in the State to give evidence through a television link in criminal proceedings in a designated state. It  sets out the information to be included when such a request is made.

If the Minister is of the view that it is not desirable or possible for the witness to give evidence in person and that the request is in accordance with 3, s/he may request the President of the District Court to nominate a District Court judge who will summon the witness to attend to give evidence via television link.

Taking of the evidence

District Court judge nominated shall summon the witness to give evidence through a television link within the district to which the judge is assigned. The  judge has the powers which apply in the District Court in relation to criminal proceedings for the purpose of complying with the request. The evidence must be given in accordance with the laws and procedures of the requesting state as far as it is compatible with the fundamental principles of the law of this country.

The witness may not be compelled to give evidence which s/he could not be compelled to give in criminal proceedings in the State or in the state seeking the evidence. The Act provides for the evidence to be taken in private if this is deemed necessary for the protection of witnesses and the state requesting the evidence agrees.

Proceedings are to be conducted by or under the direction of the judge of the requesting state in line with the laws of that state. In accordance with the Act the nominated judge is obliged to take action to ensure that the evidence is taken in accordance with the law of the State. The Act provides for interpretation where necessary.

The Act provides for a record of the evidence taken to be sent to the Minister for transmission to the requesting state and sets out what must be included in that record. It  provides for penalties in the event a witness fails to testify when under an obligation to do so or where a witness knowingly makes a false statement material to the proceedings.

Evidence by telephone link

The 2008 Act gives effect to Article 11 of the 2000 Convention and Article 10 of the Second Additional Protocol. It  provides for a request to be made for a witness present in the State to give evidence by telephone in criminal proceedings in a designated state. The Act sets out the information to be included in such a request.

If of the view that the witness is willing to give evidence by telephone link, the Minister may request that a judge of the District Court be nominated by the President of that Court to summon the witness to attend to give such evidence. The Act allows for the witness to confirm that s/he is willing to give evidence by telephone link. The Act states that provisions as set out apply in relation to the taking of evidence.