Criminal Justice (Illicit Traffic by Sea) Act 2003

1. Interpretation.

1. —(1) In this Act except when the context otherwise requires—

“Act of 1994” means the Criminal Justice Act 1994;

“Agreement” means the Council of Europe Agreement on Illicit Traffic by Sea implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Strasbourg on 31 January 1995;

“Convention state” has the meaning given to it in the Act of 1994;

“drug trafficking offence” has the meaning given to it in the Act of 1994;

“enforcement officer” has the meaning given to it in the Act of 1994;

“Minister” means the Minister for Justice, Equality and Law Reform;

F1[”outer limit of the territorial sea”has the meaning given to that expression by the Maritime Jurisdiction Act 2021;]

“territory of the State” includes a vessel registered in the State;

“vessel” means a ship or other floating craft of any description and includes a hovercraft or submersible craft.

(2) In this Act, unless the contrary intention appears, a reference to—

(a) a section, Part or Schedule is a reference to a section or Part of, or Schedule to, this Act,

(b) a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, and

(c) an enactment includes a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act.

(3) For convenience of reference, the text of the Agreement in the English language is set out in the Schedule.

2. Exercise of powers by enforcement officers.

2. —For the purposes of this Act, the powers conferred on an enforcement officer by the Act of 1994 shall not be exercised outside the F2[outer limit of the territorial sea] of the State except with the authority of the Minister for Foreign Affairs as provided in section 35(2) of the Act of 1994.

3. Convention states party to the Agreement.

3. —(1) The Minister for Foreign Affairs may by order declare that any state specified in the order is a Convention state which is a party to the Agreement.

(2) An order that is in force under subsection (1) shall be evidence that any state specified in the order is a Convention state which is a party to the Agreement.

(3) The Minister for Foreign Affairs may by order amend or revoke an order under this section including an order under this subsection.

(4) An order under this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas.

4. Communication by master of vessel.

4. —(1) Subject to subsection (2), the master of a vessel which—

(a) is registered in a Convention state which is a party to the Agreement, and

(b) is boarded by an enforcement officer outside the F3[outer limit of the territorial sea] of the State,

shall be entitled to communicate with the authorities of the Convention state concerned and the owner or operator of the vessel for the purpose of notifying them that the vessel has been boarded.

(2) An enforcement officer may prevent or delay communication under subsection (1) if he or she is satisfied that such communication would obstruct the investigation of an offence.

5. Arrested person to be brought before High Court.

5. —Where—

(a) a vessel registered in a Convention state which is a party to the Agreement—

(i) is arrested outside the F4[outer limit of the territorial sea] of the State, and

(ii) is taken by an enforcement officer to a port in the State,

and

(b) a person on board the vessel is arrested by the enforcement officer by virtue of his or her powers under the First Schedule to the Act of 1994,

the person shall be brought before the High Court as soon as possible, unless there are no longer reasonable grounds for suspecting that the person has committed the offence for which he or she was arrested, in which case the person shall be released forthwith.

6. Remand of arrested person.

6. —Where a person is brought before the High Court under section 5, and the Court is satisfied that the person was lawfully arrested by an enforcement officer in the exercise of his or her powers under the Act of 1994, the Court shall make an order remanding the person pending the production of a certificate referred to in section 8 or the release of the person in accordance with an order under section 21.

7. Request for surrender.

7. —(1) A Convention state which is a party to the Agreement may make a request to the Minister in accordance with Article 15 of the Agreement for the surrender of—

(a) a person who has been arrested,

(b) a vessel which has been detained, or

(c) anything which has been seized from a vessel and retained,

by an enforcement officer in the exercise of his or her powers under the Act of 1994.

(2) A request may be transmitted by facsimile transmission or other electronic means.

8. Certification of surrender request.

8. —On receiving a request made in accordance with section 7 for the surrender of a person, the Minister shall certify that the request has been duly made.

9. Committal or release of arrested person.

9. —(1) Where a person who has been remanded under section 6 is before the High Court and the Court is satisfied that

(a) a request under the Agreement for the surrender of the person has been duly made, and

(b) the original or a certified copy of a warrant for the arrest of the person, or other order having the same effect, issued by a judicial authority of the requesting Convention state has been produced,

the Court shall make an order committing the person to prison (or, if he or she is not more than 21 years of age, to a remand institution) there to await the order of the Minister for his or her surrender.

(2) The Court on making the order shall—

(a) inform the person to whom it relates that he or she will not be surrendered, except with his or her consent, until the expiry of 15 days after the committal date.

(b) inform the person of the provisions of section 4.2° of Article 40 of the Constitution (which relates to the making of a complaint to the Court by or on behalf of any person alleging that that person is unlawfully detained),

(c) inform the person that he or she may, if not surrendered, be liable to proceedings in the State arising out of the circumstances which led to or followed the arrest, and

(d) cause a certificate of the committal to be sent forthwith to the Minister.

(3) Where the person referred to in subsection (1) is not committed under that subsection, the Court shall order that he or she shall be released.

(4) No appeal shall lie against an order of the High Court under this section other than an appeal on a point of law to the Supreme Court.

(5) Sections 10 and 11 of the Criminal Justice Act 1960 shall apply to a person committed to a remand institution under this section.

10. Powers of adjournment and remand.

10. —The High Court may, in relation to a person brought before it under this Act, exercise all its powers of adjournment and remand, including, but not limited to, the powers in that respect which the Court has in relation to a person sent forward to it for trial.

11. Nomination of judge.

11. —The President of the High Court may nominate from time to time one or more judges of the Court, including himself or herself, to sit as soon as may be and from time to time as appears necessary so as to enable the requirements of this Act and the Agreement to be complied with.

12. Immunity of foreign officials.

12. —A person acting for or on behalf of a Convention state which is a party to the Agreement shall not be liable in any criminal proceedings in the State for anything done in the purported exercise of powers in relation to an Irish vessel

(a) on the authority of the Minister for Foreign Affairs under section 35(4) of the Act of 1994, or

(b) under an agreement referred to in section 35(5) of that Act.

13. Offences against foreign officials.

13. —Where a person acting for or on behalf of a Convention state which is a party to the Agreement exercises powers in relation to an Irish vessel—

(a) on the authority of the Minister for Foreign Affairs under section 35(4) of the Act of 1994, or

(b) under an agreement referred to in section 35(5) of that Act,

any person who does or fails to do anything in relation to that person which, if done or not done in relation to an enforcement officer, would constitute an offence is guilty of that offence, and section 36 (jurisdiction and prosecutions in relation to offences on ships) of the Act of 1994 shall apply and have effect accordingly, with any necessary modifications.

14. Restriction on arrest and proceedings.

14. —(1) Where a court or the Minister orders the release of a person who has been arrested, or of a vessel or thing which has been detained or retained, outside the F5[outer limit of the territorial sea] of the State, the release shall, subject to this Act and the Agreement, not of itself prejudice the commencement of proceedings in the State against that person or in relation to that vessel or thing in connection with the drug trafficking offence concerned or any other offence arising from the circumstances leading to or following the arrest, detention or retention.

(2) A person on board a vessel—

(a) which is registered in a Convention state which is a party to the Agreement, and

(b) in relation to which the powers conferred on an enforcement officer by the First Schedule to the Act of 1994 are exercised,

shall not be liable to be arrested or proceeded against for an offence, other than the drug trafficking offence with respect to which the powers are exercised or any offence in relation to an enforcement officer (including an offence under paragraph 9 of the First Schedule to the Act of 1994), unless—

(i) that Convention state gives its consent, or

(ii) the offence is committed by the person after he or she has been taken into the territory of the State.

(3) A person on board a vessel—

(a) which is registered in a Convention state which is a party to the Agreement, and

(b) in relation to which the powers conferred on an enforcement officer by the First Schedule to the Act of 1994 are exercised for a drug trafficking offence,

shall not be liable to be arrested or proceeded against in the State for that offence where the person is released under section 21(d).

(4) References in subsections (2) and (3) to the exercise of powers by an enforcement officer are to the exercise of those powers outside the outer limit of the territorial seas of the State.

15. Suspension of proceedings.

15. —(1) The High Court shall, on the application of the Minister, order the suspension of any proceedings commenced in any court in the State if it is satisfied that the suspension is necessary to give effect to the obligations of the State under paragraph 3 of Article 14 of the Agreement.

(2) Where it orders that proceedings be suspended, the High Court may make such other orders as are appropriate to give effect to the application by the Minister, including the revocation of any warrant of arrest issued in connection with the proceedings.

(3) For the purpose of considering an application under subsection (1), the High Court may order the adjournment of the proceedings for such period or periods, and on such conditions, as it thinks fit.

16. Removal of detained person to hospital or other place.

16. —The Minister may by order direct that a person in custody under this Act be removed to a hospital or other place if the Minister thinks it necessary to do so in the interests of the person's health and the person, while in or in transit to or from the hospital or other place, shall continue to be in the like custody.

17. Surrender of persons.

17. —(1) The Minister may by order direct that a person who has been committed under section 9, other than a person—

F6[(a) who has been released by order of the High Court under Article 40.4.2° of the Constitution or on the determination of an appeal from an order under that provision,

(aa) who has been released on the determination of an appeal to the Supreme Court (whether under Article 34.5.4° or on an appeal from a decision of the Court of Appeal),

(b) who has been released on the determination by the Court of Appeal of an appeal on a point of law,

(c) who has been released by order of the Minister undersection 21, or

(d) whose surrender has been refused undersection 22,]

be surrendered to such person as in the Minister's opinion is duly authorised by the requesting Convention state to receive him or her.

(2) Any person to whom an order under subsection (1) directs a person to be surrendered may receive, hold in custody and convey out of the State the person so surrendered and, if that person escapes from the custody to which he or she has been surrendered, he or she shall be liable to be retaken in the same manner as any person who escapes from lawful custody.

(3) An order under subsection (1) which is made in respect of a person who is subject to a sentence of a court in the State, may include a provision authorising the return of that person to the State in accordance with arrangements made by the Minister with—

(a) the court or tribunal exercising criminal jurisdiction in the Convention state concerned or a prosecuting authority in that state, or

(b) any other authority in that state that appears to the Minister to have the function of making such arrangements.

18. Surrender of vessels and any thing seized.

18. —(1) Where a vessel registered in a Convention state which is a party to the Agreement is taken by an enforcement officer to a port in the State and the vessel is detained or anything on the vessel is seized as evidence, and the Minister receives from that state a request under Article 15 of the Agreement for—

(a) the surrender of the vessel,

(b) the surrender of any thing seized from the vessel, or

(c) the surrender of both the vessel and any such thing.

the Minister may, if satisfied that the request is in accordance with the Agreement, by order direct that the vessel or thing, or both the vessel and thing, as the case may be, be surrendered to such person as in the Minister's opinion is duly authorised by the requesting Convention state to receive it.

(2) Any person to whom an order under subsection (1) directs a vessel or thing to be surrendered may receive, hold in custody and convey out of the State the vessel or thing so surrendered.

19. Time lapse before surrender.

19. —(1) A person committed under section 9 shall not, except with his or her consent given before the High Court, be surrendered under the Agreement until—

(a) the expiry of 15 days from the date of committal, or

(b) the conclusion of any appeal proceedings brought by or on behalf of that person,

whichever is the later.

F7[(2) In this section "appeal proceedings" means proceedings relating to—

(a) a complaint under Article 40.4.2° of the Constitution (including proceedings on an appeal from a decision about the complaint),

(b) an appeal on a point of law to the Court of Appeal, or]

F8[(c) an appeal to the Supreme Court (whether under Article 34.5.4° or on an appeal from a decision of the Court of Appeal);]

20. Release if not conveyed out of State.

20. —(1) An application may be made to the High Court for the release of a person who is awaiting surrender under this Act and who is not surrendered and conveyed out of the State within one month after—

(a) the date of that person's committal under section 9, or

(b) the conclusion of any appeal proceedings (as defined in section 19(2)) brought by or on behalf of that person,

whichever is the later.

(2) If satisfied that the application has been made by or on behalf of a person referred to in subsection (1) and that the Minister has been given reasonable notice of the application, the Court shall, subject to subsection (3), order that the person be released from custody under this Act.

(3) If satisfied as to the matters specified in subsection (2) and also that—

(a) the person's state of health or other circumstances beyond the control of the State or the requesting Convention state have prevented him or her from being conveyed out of the State, and

(b) it is likely that within a reasonable time those circumstances will no longer prevent the person's conveyance out of the State,

the Court may fix a period within which the person may be surrendered, and he or she shall be released from custody under this Act if not conveyed out of the State within that period.

21. Release by order of Minister.

21. —Where a person is remanded under section 6 or a vessel or thing is detained or retained by an enforcement officer, in the exercise of his or her powers under the Act of 1994, outside the F9[outer limit of the territorial sea] of the State and—

(a) there are no longer reasonable grounds for suspecting that the person has committed the offence in respect of which he or she has been remanded,

(b) no request has been received from the relevant Convention state for the surrender of the person, vessel or thing within 18 days of the arrest, detention or retention concerned,

(c) the relevant Convention state has given notice that it does not intend to make a request under the Agreement for the surrender of the person, vessel or thing, or

(d) the relevant Convention state has requested the release under the Agreement of the person, vessel or thing,

the Minister shall order the release of the person, vessel or thing, as the case may be, and the person, vessel or thing shall be released forthwith.

22. Capital punishment.

22. —Where—