The Criminal Justice (Mutual Assistance) Act 2015 amends the Criminal Justice (Mutual Assistance) Act 2008 to give effect to the following international instruments which have been ratified by the Oireachtas and which provide for mutual legal assistance with other EU member states:
• Council Framework Decision 2005/214/JHA on mutual recognition of financial penalties.
This instrument establishes the rules under which a Member State recognises and executes in its territory a financial penalty order issued by a court competent in criminal matters of another Member State.
• Council Framework Decision 2006/783/JHA on mutual recognition of confiscation orders.
This instrument establishes the rules under which a Member State recognises and executes in its territory a confiscation order issued by a court competent in criminal matters of another Member State.
• Council Decision 2008/617/11 on enhancing the operation of special intervention units in crisis situations.
This instrument aims to improve cooperation between Member States’ special intervention units in man-made crisis situations that present a serious and direct physical threat, such as terrorist incidents etc.
• Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust.
Eurojust is an EU agency, based in The Hague, dealing with judicial co-operation in criminal matters. This Council Decision amends the earlier Council Decision 2002/187/JHA setting up Eurojust, and provides for increased co-operation of Eurojust with other agencies such as OLAF or EUROPOL, and strengthens its operational capabilities.
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
This instrument seeks to ensure that principles of natural justice are adhered to in cases where judgements in absentia arise in regard to requests for mutual legal assistance.
• Council Decision 2010/616/EU on the conclusion of an agreement between the European Union and Japan on mutual legal assistance in criminal matters.
This agreement provides for mutual legal assistance between EU member states and Japan, based on the laws of the requested state. Implementation by Ireland will be based on existing provisions of the 2008 Act.
The powers of recovery of property by the High Court or by a receiver will apply to confiscation orders transmitted by member states, as well as to confiscation co-operation orders issued by the court in respect of requests from non-member states. The distinction here is required because under the provisions of the Framework Decision 2006/783/JHA a request for confiscation from an EU state can be recognised directly without being translated by the court into a domestic confiscation co-operation order.
Where a freezing co-operation order is in force in respect property which is also subject to an external confiscation order, the freezing co-operation order remains in place until such time as the property confiscation process has been concluded or terminated.The Central Authority may apply to the High Court to have a freezing co-operation order varied or discharged.
The Director of Public Prosecutions will liaise with the relevant state, via the Central Authority, to ensure that the amount of money realised in executing a confiscation order on behalf of another state does not exceed the amount specified in the order. This provision is required to give effect to Article 14 of the Council Framework Decision 2006/783/JHA. This also provides for transmission of documents by any means capable of producing a written record.
External Confiscation Orders
(designated states other than member states)
The provisions will apply only to requests received from non-EU states. If a confiscation order is received from a non-EU state an application must be made to the High Court for a confiscation co-operation order.
This Act provides for the treatment of confiscation requests from EU member states. In the case of a confiscation request from an EU member state, it can be executed by the Director of Public Prosecutions without the requirement that an application must be made to the High Court for a confiscation co-operation order. If a request received from a member state is not in order, then the Central Authority may apply to the High Court for an order refusing, postponing, varying or terminating the request.
Refusal to confiscate
There are enhanced provisions for refusal of confiscation orders. The grounds for refusal reflect the provisions of Article 8 of Council Framework Decision 2006/783/JHA. The Act provides for refusal where the offence is not an offence to which the international instrument relates.
There is provision for a refusal if there is an immunity or legal privilege which would prevent confiscation of the relevant property. There is provision for a refusal if compliance would infringe the ne bis in idem principle — this is the principle that a person cannot be tried a second time for an act which has already been adjudicated on by a court.
If the judgement was made in absentia and the defendant did not have an opportunity to defend the case. There is provision for refusal if the criminal conduct was not committed in the territory of the state making the application for confiscation, or was committed in this State. The Act provides for refusal if the enforcement or the execution of the confiscation order is statute barred.
The Act allows for refusal if the documentation is incomplete. The High Court may refuse execution of confiscation if the rights of any third party make it impossible to execute the confiscation. Any confiscation resulting from any of the offences scheduled in Article 6 (1) of the Council Framework Decision shall not be refused solely on the grounds that the offence is not an offence in this State.
Postponement of Confiscation
There is provision for postponement by the High Court where execution of a confiscation order might prejudice an ongoing criminal investigation in the State. There is provision for postponement where confiscation proceedings in respect of the property are already in train.
An order of the High Court postponing proceedings shall include an order to take whatever measures are necessary to ensure that the property concerned remains available for confiscation. It provides for the confiscation without delay once the grounds for postponement cease to exist.
Postponement can be applied in the case of requests from EU member states or requests from other designated states.
Variation or discharge of confiscation co-operation orders
There is provision for variation or discharge of confiscation co- operation orders, issued by a court in respect of confiscation requests received from non-EU states. On application by a person affected by a confiscation co-operation order, or on application by the Central Authority, the High Court may vary or discharge the order, following consideration of evidence that the order has been complied with and following consultation with the issuing state.
Notice of an application to vary or discharge an order will be transmitted to the designated state concerned. The making of an application for variation or discharge of a confiscation co-operation order will not suspend confiscation of the property.
Variation or discharge of external confiscation orders from member states
There is provision for variation or discharge of confiscation orders in respect of confiscation requests from EU member states. This differs from the provisions for non-EU states in that it provides that the only grounds for variation or discharge are where the issuing state informs the court that the external confiscation order is no longer enforceable.
Termination of external confiscation orders from member states
There is provision for termination of an external confiscation order from an EU member state only if a request to terminate it is received from the issuing state.
Central Authority to inform competent authority
There is an obligation on the Central Authority to keep the issuing state informed of various matters relating to the execution, postponement, variation, discharge or termination of the confiscation order.
The Act provides for disposal of property in accordance with the provisions of Council Framework Decision 2006/783/JHA. This enables a receiver to sell any property recovered on foot of a confiscation order received from another state. Sums received on foot of a confiscation are paid into the exchequer where the amount is less than €10,000. Amounts greater than €10,000 will be divided equally with the issuing state.
If property is requested for evidence purposes, that request will have priority over a request for confiscation.
The 2015 Act inserts a new Part into the 2008 Act to provide for mutual recognition of financial penalties imposed by courts in EU member states, in accordance
The Act sets out the procedure to be followed in this State to request execution in another member state of a fine imposed in an Irish Court, where a fine has not been paid in whole or in part.
The Central Authority is to be notified where a financial penalty order is imposed by a court on a person who is resident in another member state or who has property or income in that state. The Central Authority is to transmit the relevant documents and a equest for execution of the financial penalty order to another member state.
The Central Authority is to inform the other member state of the amount remaining to be paid or if the financial penalty order ceases to be enforceable. The financial penalty order is to be reduced or discharged where amounts are paid to the member state concerned.
A certificate from a competent authority in another state which states the amount of any payment made to that state on foot of a financial penalty order will be admissible without further proof. Subsection (6) provides for transmission of documents by electronic or other means capable of producing a written record.
Transmission to State of external financial penalty order
The 2015 Act sets out the procedure to be followed by a member state seeking to transmit an external financial penalty order for execution by the State. It provides for the member state to seek execution of the external financial penalty order in this State. It provides for the request to be accompanied by the relevant certificate and documents required in accordance with the Council Framework Decision.
The 2015 Act provides for transmission of documents by electronic or other means capable of producing a written record. It allows for transmission of facsimile documents and any translations required, subject to any regulations the Minister may make in that regard. It provides for the Central Authority or court to request an original or copy document if a facsimile is found not to be satisfactory. It allows the Minister to make regulations prescribing procedures and specifications for transmission of documents.
External financial penalty orders
The 2015 Act provides for the execution of external financial penalty orders. An external financial penalty order will be dealt with as though it is an order of an appropriate court in this State.
Where there are grounds for refusal or termination of the external financial penalty order, the Central Authority may make an application to the appropriate court.
The provisions of the Fines (Payment and Recovery) Act 2014 will apply to the execution of external financial penalty orders. Where necessary, the amount of an external financial penalty order will be converted into euros at the exchange rate prevailing on the date of the making of the order.
Refusal to execute an external financial penalty order
The 2015 Act sets out the grounds for refusal of an external financial penalty order, in accordance with the provisions of Article 7 of the Council Framework Decision 2005/214/JHA.
There is provision for refusal
- if the conduct which resulted in the financial penalty order has already been the subject of a financial penalty order in this State.
- if the conduct which resulted in the financial penalty order has already been the subject of a financial penalty order in another state
- if the conduct in question is not an offence in this State
- if the execution of the order is statute barred
- where the conduct concerned was not committed in the territory of the issuing state or this State.
The Act provides for refusal if there is an immunity or privilege in this State which prevents execution of the financial penalty order.
There is provision for refusal if the defendant could not have been convicted of the offence due to their age. It provides for refusal if the judgement was made in absentia and the defendant did not have an opportunity to defend the case — this provision is required by Council Framework Decision 2009/299/JHA. There is provision for refusal where the financial penalty is less than €70. The request may be refused where the documentation is incomplete or incorrect.
Variation of amount payable under external financial penalty order
The 2015 Act provides that the court may reduce the amount of the financial penalty order if it exceeds the maximum penalty which may be imposed for the offence in this State or where there has been partial payment of the penalty or the court otherwise determines that the amount should be reduced.
Termination of execution of external financial penalty order
The 2015 Act provides that the execution of the financial penalty order shall be terminated once the issuing state informs the competent authority that it is no longer enforceable or has been withdrawn.
Central Authority to inform competent authority
There is an obligation on the Central Authority to keep the issuing state informed of various matters relating to the execution, variation, or termination of the financial penalty order, or if imprisonment or alternative sanctions are imposed on a defendant on foot of non-payment of a financial penalty order. The amounts collected on foot of executing a financial penalty order accrue to the Exchequer unless otherwise agreed with the issuing state.
Where general evidence sought by another state is already in the possession of the Garda Síochána or the evidence is obtained on foot of a warrant, the Gardaí may transmit the evidence to the requesting state.
Where a particular piece of evidence sought by another state is already in the possession of the Garda Síochána or the evidence is obtained on foot of a warrant, the Gardaí may transmit the evidence to the requesting state.
Where requests for searches for evidence under section 74 or 75 are conducted by the Revenue Commissioners in relation to revenue offences, the officers of the Revenue Commissioners have the same powers of search and seizure of evidence as have the Garda Síochána.
Special Intervention Units
The 2015 Act gives effect to the Council Decision 2008/617/11 on enhancing the operation of special intervention units in crisis situations. The Garda Commissioner may establish a special intervention unit for the purpose of providing assistance in the control of a crisis situation under section 94E.
The 2015 Act provides for the issuing of a request to another member state for the assistance of a crisis intervention unit. The competent authority may issue such a request, with the agreement of Government, if as a result of the commission of a criminal offence a crisis situation exists and it is in the public interest to seek the assistance of a special intervention unit from another state. Any request to include information regarding the nature of the crisis and the type of assistance required. Such other information as would reasonably be required by another state in deciding a request will also be provided. Subsection (4) provides that the Competent Authority may agree the type of equipment, expertise and assistance to be provided by the special intervention unit.
Other member states are to issue a request for the assistance of a crisis intervention unit from this State. The competent authority shall consider such a request from another member state. Subsection
The 2015 Act sets out the requirement for any request to include information regarding the nature of the crisis and the type of assistance required. Such other information as would reasonably be required in deciding a request may be sought. The competent authority may, subject to Government agreement, agree the form of assistance, including the equipment and expertise to be provided by a special intervention unit to that member state.
Operation of special intervention unit
The 2015 Act provides for the operation of a special intervention unit. It will be established for a specific purpose and limited time period as agreed by the competent authorities. The special intervention unit may operate in this State or in the other member state for so long as is necessary.
The 2015 Act provides for the competent authority to terminate assistance once the intended purpose of the crisis intervention unit has been served. A crisis intervention unit operating in this State shall do so under the direction and control of the Garda Commissioner, in accordance with the laws of the State and within the limits of powers conferred by its own state.
The Minister may designate a Eurojust national member who may transmit and receive information in accordance with Council Decision 2009/426/JHA.
Criminal Justice Act 1994 provides for compensation to be payable to persons affected by any serious default on behalf of the State arising from a domestic confiscation of property. This 2015 Act extends the compensation provisions of section 65 of the 1994 Act to include compensation for serious default by the State in executing an external confiscation order, external freezing order or external forfeiture order.
The 2015 Act amends the Garda Síochána Act 2005 to give effect to the Council Decision 2008/617/11 on enhancing the operation of special intervention units in crisis situations and to provide that an Garda Síochána may participate in special intervention units.