EU Search & ID

Search for evidence at place in designated state

The provisions are based on those contained in the Criminal Justice Act 1994.

A judge may issue a letter to another state requesting assistance in obtaining evidence where it appears to him or her that criminal proceedings have commenced or a criminal investigation is underway in another state and where pertinent evidence may be obtained in that state.

The Director of Public Prosecutions or a person charged in the proceedings referred to in the 2008 Act may apply for a letter of request. The Act  provide for the transmission of the letter of request to the relevant authority and for the Director of Public Prosecutions to issue the letter of request directly in certain specified circumstances. It specifies the information to be included in the letter of request.

Any evidence obtained by virtue of the 2008 Act will not be used other than for the purpose specified in the request unless the consent of the relevant authority is obtained. In accordance with the Act any evidence no longer required must be returned to the appropriate authority from which it was obtained, unless the authority indicates otherwise. The Act defines ‘appropriate authority’.

Search for evidence for use outside State (general)

The 2008 Act applies to a request from a designated state for assistance in obtaining evidence for the purposes of a criminal investigation or criminal proceedings in that state where a search power exists domestically in relation to the conduct giving rise to the offence. The Act limits its application (a) cases where the offence is punishable under both the law of the State and that of the member state by imprisonment for at least six months, or (b) cases where the offence is punishable under Irish law by at least six months’ imprisonment and where it is being prosecuted in the member state by administrative authorities, whose decision may give rise to criminal proceedings.

This does not apply to a request from a designated state other than a member state unless dual criminality applies. The Minister may send the request and any related documents to the Commissioner of the Garda Siochana to arrange for the request to be complied with. the Minister may not send the request to the Commissioner of the Garda Siochana for execution unless the requesting authority gives an assurance that any evidence supplied will not be used for a purpose other than that specified in the request without the Minister’s consent and that the evidence will be returned when no longer required unless the Minister indicates otherwise.

Either the consent of the occupier or a warrant is required for a member of the Garda Siochana to enter a place in furtherance of a request. unless the evidence sought is already in the possession of the Garda Siochana, a search warrant must be applied for by a member of the Garda Siochana of at least the rank of inspector.

The Act sets out the requirements to be met in order for a judge to issue a search warrant. They are that the request is one related to this provision ; that entry to a place is necessary to execute the request and that the owner has either not consented to the entry or is unlikely to consent, and seeking his or her consent might seriously prejudice compliance with the request.

The Act lists the provisions of a warrant. The warrant will authorise a named member of the Garda Siochana, accompanied by other Gardaí´ or persons the member considers necessary, to enter a named place at any time within one week of the warrant’s issue; reasonable force may be used; the place and any person there may be searched; material found on the premises or on any person present on the premises at the time of the search may be examined, taken away and retained, if the member believes it may be evidence or relate to the offence concerned or be assets or proceeds deriving from criminal conduct; any document may be copied and taken away and any appropriate steps to prevent interference with any material may be taken.

Any material required that is non legible must be produced in legible format. The Act clarifies that documents subject to legal privilege are exempt from the provisions of the warrant but that other obligations with respect to secrecy under law do not affect a warrant issued. A Garda Siochana acting under a warrant issued under the Act may require the name and address of any person present and arrest any person who obstructs or attempts to obstruct the search, or who fails to give his name or address, or who gives a name or address which the member reasonably believes to be false.

The Act provides for penalties for (i) obstructing the effecting of the warrant, (ii) refusal to supply name and address or (iii) giving a false or misleading name or address. The Act clarifies that the power to issue a search warrant under the Act does not affect any other power under law to issue a search warrant.

Search for particular evidence for use outside State

The 2008 Act applies to a request from a designated state for help in obtaining evidence for the purpose of a criminal investigation or proceedings, where a search power exists domestically in relation to the conduct giving rise to the offence. The Act limits the application of the Act to (a) cases where the offence is punishable under both the law of the State and that of the member state by imprisonment for at least six months, or (b) cases where the offence is punishable under Irish law by at least six months’ imprisonment and where it is being prosecuted in the member state by administrative authorities, whose decision may give rise to criminal proceedings. The provision  does not apply to a request from a designated state other than a member state unless dual criminality applies.

The 2008 Act also applies to a request made under Part 4 of this Act, relating to the freezing of evidence, where a penalty of not less than three years’ imprisonment applies in the member state concerned. The Minister may send a request to which the acct applies along with any related documents to the Commissioner of the Garda Siochana for compliance, provided that an assurance has been given by the requesting authority that any material furnished will not, without prior consent, be used for any purpose other than that specified in the request and that the material will be returned when no longer required unless the Minister indicates otherwise.

Either the consent of the occupier or a legal authorisation is required for a member of the Garda Siochana to enter a place in furtherance of a request. unless the material sought is already in the possession of the Garda Siochana, a member of the Garda Siochana of at least the rank of inspector must apply to a judge for a production order. The Act sets out the requirements to be met in order for such an order to be issued.

The judge must have reasonable grounds to believe that the Act is applicable; that the person named possesses the required material and that s/he has not agreed to produce it or is unlikely to agree and that seeking consent might seriously prejudice compliance with the request. If these conditions are met, the judge may order the person to produce the required material or allow a member of the Garda Siochana access to the material. The order may include a requirement that a member of the Garda Siochana be granted entry to a particular place to obtain access to the material required.

The Act provides for a judge to amend or terminate such an order. Any material required that is non legible must be produced in legible format. The Act clarifies that documents subject to legal privilege are exempt from the provisions of the warrant but that other obligations with respect to secrecy under law do not affect a warrant issued.

If a person does not comply with the order, then the order becomes in effect a search warrant. The Act provides for the privilege of material supplied by or on behalf of the government of another state to a Government Department or other State agency where an undertaking was given that the material would be used only for a specified purpose, unless that government consents. The Act is without prejudice to the provisions dealing with the search for evidence for use outside the State.

Identification evidence for use in State

A judge may issue a letter of request for assistance where it appears to him or her that criminal proceedings or a criminal investigation is underway and identification evidence for the purposes of the proceedings or investigation may be obtained from a designated state. Under the Act the Director of Public Prosecutions or a person charged in the proceedings may apply for a letter of request.

The letter of request may be transmitted to the appropriate authority and in certain specified circumstances the Director of Public Prosecutions may issue and transmit a letter of request directly. The Act sets out what must be included in the letter of request. A statement is necessary that the evidence is required for a criminal investigation or for criminal proceedings and that it will be returned to the appropriate authority when no longer required for this purpose unless that authority indicates otherwise. A brief description of the conduct concerned must be provided and any other available information which will help to comply with the request.

Any evidence obtained must only be used for the specified purpose. The evidence provided will be returned when it is no longer required for the purpose for which it was supplied, unless the authority indicates otherwise. Aa report of the taking of the evidence signed by an appropriate person, a record of the evidence kept by the appropriate authority and any certified translation of such documents are admissible as evidence without further proof.

Identification evidence for use outside State

The 2008 Act sets out what must be included in a request from a designated state to obtain identification evidence. A statement is necessary that the evidence is required in connection with criminal proceedings or a criminal investigation and a description of the conduct concerned is also required.

Action on request

The Minister may send a request which complies with the provisions set out in 3 to the Commissioner of the Garda Siochana for action. The Minister must be satisfied that any evidence furnished in response to the request will not be used for any purpose other than that specified in the request without the Minister’s consent and that the evidence will be returned or destroyed once no longer required.

If the evidence is not in the possession of the Garda Siochana, a member of the Garda Siochana shall inform the person from whom the evidence is required of the nature of the evidence, that it has been requested in connection with criminal proceedings or a criminal investigation in another state, of his or her right to refuse to provide the evidence and that if consent is not given, this fact may be used in proceedings in the designated state.

The Act provides for the taking of the evidence following consent. It provides for the giving of identification evidence by a person in prison. Such evidence may only be taken if it relates to an offence other than that for which the person is in prison. Intimate bodily samples may only be taken by a doctor and dental impressions by a doctor or dentist. The Act provides for forensic testing of certain specified samples. The Act lays out provisions for the taking of hair samples. The Act outlines the particulars that must be recorded when identification evidence is taken.

There are provisions for the transmission of identification evidence to the requesting authority and for the destruction of the evidence in certain circumstances and for the possible extension of time limits in relation to destruction.