Theft & Fraud Procedures

Warrants & Seizure

In common with the other principal criminal law statutes, the Criminal Justice (Theft and Fraud Offences) Act provides specific provision in respect of investigation and trial of offences.

There is a provision for the issue of a search warrant where there are reasonable grounds for suspecting that an offence under the Act has been committed and that evidence relating to such an offence is to be found at a particular place.  The provisions cover offences subject to a imprisonment for a term of five years or more.

The warrant authorises a  member of an Garda Siochana alone or accompanied by others to enter within seven days and search examine and seize aterial which is reasonably believed to be evidence or related to commission of an offence under the legislation.  Garda Siochana may take other steps as may be appear necessary for preserving such thing and preventing interference with it.

Copies may be taken of documents or records.  Where necessary computers and other storage media  may be taken and detained  The Gardai may operate any computers being searched or  cause it to be operated by a person accompanying the member for that purpose.

Cooperation

They may require persons who appear to be in charge and have access to the information on such computer to give the member any necessary password and enable them to examine information accessible by the computer in a form which is visible and legible, and produce information in a form which can be removed and which can be made visible and legible.

Items of value found in an investigation for the purpose of which the warrant was issued may be seized

It is an offence to obstruct or attempt to obstruct the member of a Garda Siochana executing a warrant, to fail or to refuse to give a name and address when required, to give a misleading name or to fail to comply with the requirements.  This offence is subject  on summary conviction of fine of €500 or six months imprisonment.  A person whom is committing an offence under the above provision may be arrested without warrant.

Forfeiture

Certain things seized may be forfeited.  These include false instruments, counterfeit currency note or things used for their manufacture.  A member of an Garda Siochana may apply to a judge for an order.

The judge, if satisfied that it is in the public interest, may order the thing to be forfeited, destroyed and disposed of.  An order in relation to forfeiture and destruction may be made in in proceedings where a person is convicted of an offence.

Frustrating Investigation

A person who knows or suspects that an investigation by a member from Garda Siochana is being or is likely to be carried out, falsifies, conceals, destroys, or disposes of a document or record that he suspects would be relevant to the investigation, or permits falsification, concealment, destruction, or disposal is guilty of an offence.

Where it is reasonable to conclude that the person knew or suspected as above, he shall be taken to have so known unless there is a reasonable doubt as to whether he so knew or suspected.  A person who is guilty of such an offence may be liable on conviction on indictment to a fine or imprisonment of up to five years or both.

Production of Evidence

Where a judge is satisfied on application by member of an Garda Siochana that a person has control of a particular material of a particular description which there are reasonable grounds for suspecting constitutes evidence in relation to the commission of an offence,  the judge may order the person to produce the material to the member of a Garda Siochana who may take it away or may have access to it.  This may include information on a computer.

The information may be retained by a member of a Garda Siochana for criminal proceedings.  Information disclosed in the document is admissible unless it is privileged or supplied by a person it would not be compellable.

Trial

The District Court may try a person summarily, who is  charged on indictment with an offence under the legislation, if it is of the opinion that the facts proved or alleged constitute a minor offence, fit  to be tried summarily the accused does not object and the DPP consents.  On summary trial the accused is liable for a fine of not more than  £1,500 or imprisonment up to 12 months or both.

A number of persons may be charged on one indictment with reference to the same theft  or with having handled or possessed the same stolen property.  Persons or members of partnerships or one of two or more beneficial owners who steals property belonging to the partnership of beneficial owners, may be tried as if they were not the members of the partnership.

If a property has been stolen and a person is convicted of an offence with reference to the theft or it is taken into consideration in determining a sentence on another offence, the court may, on conviction, order anyone having possession of and control of the property to restore it to the person entitled to it.

Disposition of Stolen Property

On an application of a person entitled to recover the property or any other property directly or indirectly representing the first mentioned property, the court  may order the other property be delivered or transferred to the applicant.

The court may order that a sum of money not exceeding the value of first mentioned property should be paid out of money of the convicted person which has been taken out of his possessions when arrested.

Where the court makes an order as above and a third party has purchased the goods in good faith or has advanced on their security,  the purchaser or lender may apply to the court for an order for payment out of money of the convicted person which has taken out of his possession when  arrested not exceeding the amount paid for the purchase or the lender.

The above powers may only be exercised if the court is of the opinion that the facts sufficiently appear from the evidence given at trial to get or available documents or admissions. The s available documents include depositions, statements and admissions admissible in evidence.

Corporate Officers

Where offences under the theft and fraud legislation are committed by a company and the offence has been proved with the consent or connivance of the director, manager or other person purporting to act in such authority the person concerned may be convicted as principal.

Similarly, where the affairs of the company are managed by its members, the acts and defaults of the members in connection with the functions of management may be treated as if they were a director.  Similar provisions apply in relation to the affairs of a body corporate.