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Criminal Justice (Mutual Assistance) Act 2008

Type Act

Publication 2008-04-28

Last updated 2025-05-20

State Partially repealed

Text Latest available text

Source Irish Statute Book

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This is the most recent text the official source publishes. It is not a snapshot of the law as it stood on the date of each change.

32 amending acts · 2025-05-20, revised-IE-2008-act-7@2025-05-20

— (a) to enable effect to be given in the State to provisions of the following international instruments relating to mutual assistance in criminal matters: (i) the European Union Convention of 29 May 2000, the Protocol thereto of 16 October 2001 and the Agreement of 19 December 2003 between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the convention and protocol, (ii) Council Framework Decision 2003/577/JHA of 22 July 2003 concerning orders freezing property or evidence, (iii) the Second Additional Protocol of 8 November 2001 to the European Convention of 20 April 1959, (iv) the Treaty of 18 January 2001 between the United States of America and Ireland, as applied by the instrument contemplated by Article 3(2) of the Agreement of 25 June 2003 between the European Union and the United States of America and done at Dublin on 14 July 2005; (b) to give effect to Council Decision (2002/192/EC) of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen Acquis, in so far as those provisions relate to mutual assistance in criminal matters; (c) to repeal and re-enact, with amendments, Part VII (International Co-operation) of the Criminal Justice Act 1994; and to provide for related matters

Reform history JSON API

AN ACT—

(a) TO ENABLE EFFECT TO BE GIVEN IN THE STATE TO CERTAIN INTERNATIONAL AGREEMENTS, OR PROVISIONS OF SUCH AGREEMENTS, BETWEEN THE STATE AND OTHER STATES RELATING TO MUTUAL ASSISTANCE IN CRIMINAL MATTERS;

(b) TO REPEAL AND RE-ENACT, WITH AMENDMENTS, PART VII (INTERNATIONAL CO-OPERATION) OF THE CRIMINAL JUSTICE ACT 1994;

AND TO PROVIDE FOR RELATED MATTERS.

[28th April, 2008]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1 Preliminary and General

1. Short title and commencement.

1.— (1) This Act may be cited as the Criminal Justice (Mutual Assistance) Act 2008.

(2) This Act shall come into operation on such day or days as may be appointed by order or orders of the Minister, either generally or with reference to a particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

2. Interpretation (general).

2.— (1) In this Act, except where the context otherwise requires—

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

“Agreement with Iceland and Norway” means the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the 2000 Convention and 2001 Protocol, done at Brussels on 19 December 2003;

F2["Agreement with Japan" means the Agreement between the European Union and Japan on mutual legal assistance in criminal matters, done at Brussels on 30 November 2009 and at Tokyo on 15 December 2009;]

“Articles 49 and 51”, in relation to the Schengen Convention, means those Articles of the Convention, as applied to the State by Council Decision (2002/192/EEC) of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis, but does not include paragraph (a) (repealed by Article 2.2 of the 2000 Convention) of Article 49;

“authority” includes a person;

“1959 Convention” means the European Convention on Mutual Assistance in Criminal Matters, done at Strasbourg on 20 April 1959, and includes the Additional Protocol of 17 March 1978 thereto;

“1977 Terrorism Convention” means the European Convention on the Suppression of Terrorism, done at Strasbourg on 27 January 1977;

F3["1999 Protocol" means the Protocol to the Convention for the Protection of Cultural Property in the event of Armed Conflict, done at The Hague on 26 March 1999;]

“2000 Convention” means the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, done at Brussels on 29 May 2000;

F2["2003 Framework Decision" means Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence¹⁰;]

“2005 Convention” means the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, done at Warsaw on 16 May 2005;

“2005 Council Decision” means Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and co-operation concerning terrorist offences;

F2["2005 Framework Decision" means Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of mutual recognition to financial penalties¹¹;]

F2["2006 Framework Decision" means Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders¹²;]

F4["2008 Council Decision" means Council Decision 2008/615/JHA of 23 June 2008⁹ on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime;]

F2["2008 Council Decision (special intervention units)" means Council Decision 2008/617/JHA of 23 June 2008 on the improvement of cooperation between special intervention units of the member states of the European Union in crisis situations⁷;]

F4["2009 Agreement with Iceland and Norway" means the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto, done at Stockholm on 26 November 2009 and at Brussels on 30 November 2009;¹⁰

F2[F5[…]]

F2["2010 Council Decision" means Council Decision 2010/616/EU of 7 October 2010 on the conclusion of the Agreement between the European Union and Japan on mutual legal assistance in criminal matters⁹;]

F6["2018 Regulation" means Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA1;]

“Central Authority” means the authority mentioned in section 8;

“criminal conduct” means any conduct—

(a) which constitutes an offence, or

(b) which occurs in a designated state and would, if it occurred in the State, constitute an offence;

“criminal investigation”—

(a) means an investigation into whether a person has committed an offence (within the meaning of the relevant Part) under the law of the State or a designated state in respect of which, where appropriate, a request for assistance may be made under the relevant international instrument, and

(b) includes an investigation into whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds;

“criminal proceedings” means proceedings, whether in the State or a designated state, against a person for an offence and includes—

(a) proceedings to determine whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds,

(b) proceedings concerning measures relating to—

(i) the deferral of delivery or suspension of enforcement of a sentence or preventive measure,

(ii) conditional release, or

(iii) a stay or interruption of enforcement of a sentence or preventive measure,

(i) without prejudice to subsection (2)(b) of sections 74 and 75 (requests for evidence or evidential material), proceedings brought by an administrative authority in respect of conduct which is punishable under the law of the State or that state or of both of them, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters,

(ii) proceedings in claims for damages arising from wrongful prosecution or conviction,

(iii) clemency proceedings,

(iv) civil actions joined to criminal proceedings, as long as the criminal court concerned has not taken a final decision in the criminal proceedings, and

(v) proceedings in respect of measures relating to—

(I) the deferral of delivery or suspension of enforcement of a sentence or preventive measure,

(II) conditional release, or

(III) a stay or interruption of enforcement of a sentence or preventive measure,

and

(d) in relation to requests for assistance by a requesting authority in a designated state (other than a member state), without prejudice to subsection (3) of sections 74 and 75 proceedings brought by an administrative authority in respect of conduct which is punishable under the law of the State or that state or of both of them, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters;

“designated state” means a member state and any other state designated under section 4;

“EC/Swiss Confederation Agreement” means the Co-operation Agreement between the European Community and its member states, of the one part, and the Swiss Confederation, of the other part, to combat fraud and any other illegal activity to the detriment of their financial interests, done at Luxembourg on 26 October 2004;

F7[“EPPO” means the European Public Prosecutor’s Office established under Article 3 of Council Regulation (EU) 2017/1939 of 12 October 2017³ implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office ("the EPPO"), as amended by Commission Delegated Regulation (EU) 2020/2153 of 14 October 2020⁴;

“EPPO request” means a request for assistance that is made by EPPO in accordance with section 6 (as applied by section 94K) and the Part 7B Regulations (if any) and includes a request that is deemed under section 94F(3) to have been so made;]

“evidence” means oral evidence or, as appropriate, any document or thing which could be produced as evidence in criminal proceedings, including any information in non-legible form which could be converted into permanent and legible form for the purposes of those proceedings;

F8[…]

“imprisonment” includes detention and, in relation to a designated state, any other form of deprivation of liberty;

“international instrument” means any of the following agreements, or provisions of agreements, between the State and other states or another state in relation to mutual assistance in criminal matters:

(a) the 2000 Convention;

(b) the 2001 Protocol;

F9[(ca) the Agreement with Japan;]

(d) Articles 49 and 51 of the Schengen Convention;

(e) F10[2003 Framework Decision];

F9[(ea) the 2005 Framework Decision;

(eb) the 2006 Framework Decision;]

(f) Title III of the EC/Swiss Confederation Agreement;

(g) the 2005 Council Decision;

F4[(ga) Article 7 of the 2008 Council Decision;

(gb) Article 1 of the 2009 Agreement with Iceland and Norway insofar as it applies Article 7 of the 2008 Council Decision in bilateral relations between Iceland or Norway and each member state of the European Union and in relations between Iceland and Norway;]

F9[(gc) the 2008 Council Decision (special intervention units);

(gd) F5[…]]

F6[(ge) the 2018 Regulation;]

F11[(gf) F12[Titles II, VIII and XI] of Part Three of the Trade and Cooperation Agreement;]

(h) the 1959 Convention;

(i) the Second Additional Protocol;

(j) Chapter IV of the 2005 Convention;

F13[(ja) the Istanbul Convention;]

(k) Articles 13, 14, 18, 19 and 20 of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000;

(l) Articles 46, 49, 50 and 54 to 57 of the United Nations Convention against Corruption, done at New York on 31 October 2003;

F3[(la) the 1999 Protocol;]

F14[(lb) the Second Optional Protocol;]

F15[(m) a bilateral agreement between the State and a designated state, or a multilateral agreement between the State and other designated states, for the provision of such assistance; and]

(n) any reservation or declaration made in accordance with such an instrument;

F13["Istanbul Convention" means the Council of Europe Convention on preventing and combating violence against women and domestic violence done at Istanbul on 11 May 2011;]

“member state” means—

F16[(a) a member state of the European Union (other than the State), for the purposes of mutual assistance under the provisions of the 2000 Convention, 2001 Protocol, Articles 49 and 51 of the Schengen Convention, 2003 Framework Decision, 2005 Framework Decision, 2005 Council Decision, Article 7 of the 2008 Council Decision, Article 1 of the 2009 Agreement with Iceland and Norway insofar as it applies Article 7 of the 2008 Council Decision in bilateral relations between Iceland or Norway and each member state of the European Union (other than the State) and in relations between Iceland and Norway, 2008 Council Decision (special intervention units), and]

(b) Iceland and Norway or any other designated state, for the purposes of mutual assistance under any of those provisions;

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

“offence”—

(a) means an offence in respect of which a request for mutual assistance may be made under the relevant international instrument,

(b) includes a revenue offence, if or to the extent that the relevant international instrument or the law of the designated state concerned provides for mutual assistance in respect of such an offence, but

F17[(c) does not, other than in relation to a request for mutual assistance made under F12[Title II or Title XI] of Part Three of the Trade and Cooperation Agreement, include a political offence;]

F7[“Part 7B Regulations” has the meaning assigned to it by section 109(1B);]

“place” means a physical location and includes—

(a) a dwelling, residence, building or abode,

(b) a site,

(d) a vessel, whether sea-going or not,

(e) an aircraft, whether capable of operation or not, and

(f) a hovercraft;

“political offence”, except in Part 2 —

(a) includes an offence connected with a political offence,

(b) does not include any offence in respect of which a person may be surrendered to another state under the European Arrest Warrant Act 2003 or the Extradition Acts 1965 to 2001;

“prison” means a place of custody administered by or on behalf of the Minister (other than a Garda Síochána station) and includes—

(a) F18[…]

(b) a place provided under section 2 of the Prisons Act 1970, and

“property”, except in Part 4, includes—

(a) money and all other property, real or personal, movable or immovable,

(b) a chose in action and any other intangible or incorporeal property,

(d) evidence;

“2001 Protocol” means the Protocol to the 2000 Convention, done at Luxembourg on 16 October 2001;

F7[“relevant EPPO member state” means a member state of the European Union—

(a) that participates in enhanced cooperation on the establishment of EPPO in accordance with Article 86(1) of the Treaty on the Functioning of the European Union or by virtue of a decision adopted in accordance with Article 331(1) of that Treaty, and

(b) where EPPO is conducting a criminal investigation or criminal proceedings that are the subject of an EPPO request;]

“relevant international instrument” means the international instrument in accordance with which a request for assistance is made;

“request” means a request for assistance which is made by a requesting authority under and in accordance with a relevant international instrument;

“requesting authority” means—

(a) a court or tribunal exercising jurisdiction in criminal proceedings in a designated state and making a request, or

(b) any other authority in that state appearing to the Minister to have the function of making the request;

“revenue offence”—

(a) means an offence under the law of the State or a designated state in connection with taxes, duties, customs or exchange regulation,

(b) includes such an offence under the law of a designated state irrespective of whether the law of the State provides for taxes, duties, customs or exchange regulation of the same kind as that state provides, but

(i) an offence involving the use or threat of force or perjury or the forging of a document issued under statutory authority, or

(ii) an offence alleged to have been committed by an officer of the Revenue of that state in his or her capacity as such officer;

“Schengen Convention” means the Convention, signed in Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985;

“Second Additional Protocol” means the Second Additional Protocol of 8 November 2001 to the 1959 Convention;

F14["Second Optional Protocol" means the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, done at New York on 25 May 2000;]

“state”, in relation to a state other than the State, includes a territory, whether in the state or outside it—

(a) for whose external relations the state or its government is wholly or partly responsible, and

(b) to which the relevant international instrument applies or whose law provides for mutual assistance in criminal matters,

and “designated state” and “member state” are to be construed accordingly.

F11["Trade and Cooperation Agreement" means the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, done at Brussels and London on 30 December 2020¹;]

(2) Reservations made pursuant to Article 13 of the 1977 Terrorism Convention do not apply to mutual assistance in criminal matters between member states.

(3) The following provisions of this Act give effect to Council Decision (2002/192/EC) of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis, in so far as those provisions relate to mutual assistance in criminal matters:

(a) paragraph (c) of the definition of “criminal proceedings” in subsection (1);

(b) subsections (1) and (2) of sections 74 and 75;

(4) Judicial notice shall be taken of a relevant international instrument.

(5) When interpreting any provision of this Act—

(a) a court may consider the relevant international instrument and any explanatory document issued in connection with it, and

(b) give the instrument and any such document such weight as is appropriate in the circumstances.

(6) For convenience of reference—

(a) Schedule 1 sets out the English text of the 2000 Convention,

(b) Schedule 2 sets out the English text of the 2001 Protocol,

F19[(ca) Schedule 3A sets out the English text of the Agreement with Japan,]

(d) Schedule 4 sets out the English text of Articles 49 and 51 of the Schengen Convention,

(e) Schedule 5 sets out the English text of the F20[2003 Framework Decision],

F19[(ea) Schedule 5A sets out the English text of the 2005 Framework Decision,

(eb) Schedule 5B sets out the English text of the 2006 Framework Decision,]

(f) Schedule 6 sets out the English text of Title III of the EC/Swiss Confederation Agreement,

(g) Schedule 7 sets out the English text of the 2005 Council Decision,

F19[(ga) Schedule 7A sets out the English text of the 2008 Council Decision (special intervention units),

(gb) F5[…]]

F6[(gc) Schedule 7C sets out the English text of the 2018 Regulation,]

F11[(gd) Schedule 7D sets out the English text of F12[Titles II, VIII and XI] of Part Three of the Trade and Cooperation Agreement.]

(h) Schedule 8 sets out the English text of the 1959 Convention and the First Additional Protocol thereto,

(i) Schedule 9 sets out the English text of the Second Additional Protocol to the 1959 Convention,

(j) Schedule 10 sets out the English text of Chapter IV of the 2005 Convention,

F13[(ja) Schedule 10A sets out the English text of the Istanbul Convention,]

(k) Schedule 11 sets out the English text of Articles 13, 14, 18, 19 and 20 of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000,

(l) Schedule 12 sets out the English text of Articles 46, 49, 50 and 54 to 57 of the United Nations Convention against Corruption, done at New York on 31 October 2003,

F14[(la) Schedule 12A sets out the English text of the Second Optional Protocol,]

(m) Schedule 13 sets out the English text of the Agreement on Mutual Legal Assistance between the European Union and the United States of America, done at Washington D.C. on 25 June 2003, and

(n) Schedule 14 sets out the English text of the Treaty between the Government of Ireland and the Government of the United States on Mutual Assistance in Criminal Matters, done at Washington D.C. on 18 January 2001, as applied by the Instrument contemplated by Article 3(2) of the said Agreement of 25 June 2003 and done at Dublin on 14 July 2005.

2A. F21[Application for purposes of Part 7B

2A.— This Act shall, subject to Part 7B and with all other necessary modifications, apply to the provision of assistance referred to in section 94F(1) as it applies to the provision of mutual assistance between the State and a designated state.]

3. General restriction on providing assistance.

3.— (1) Assistance shall be refused—

(a) if the Minister considers that providing assistance would be likely to prejudice the sovereignty, security or other essential interests of the State or would be contrary to public policy (ordre public),

(b) if there are reasonable grounds for believing—

(i) that the request concerned was made for the purpose of prosecuting or punishing a person on account of his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation,

(ii) that providing assistance—

(I) may prejudice a person’s position for any of those reasons, or

(II) may result in the person being subjected to torture or to any other contravention of the European Convention on Human Rights,

(d) if, and for as long as, the provision of assistance would prejudice a criminal investigation, or criminal proceedings, in the State,

and may be refused on any other ground of refusal of assistance specified in the relevant international instrument.

(2) In this section, “torture” has the meaning given to it by the Criminal Justice (United Nations Convention against Torture) Act 2000.

4. Designated state.

4.— The Minister for Foreign Affairs, after consultation with the Minister, may by order designate a state (other than a member state) for the purposes of mutual assistance between the State and that state under this Act or specified Parts or provisions of it in accordance with the relevant international instrument.

5. Certain Articles of 2000 Convention and Second Additional Protocol to have force of law.

5.— (1) Subject to the provisions of this Act, Articles 4 (formalities and procedures in the execution of requests) and 6 (transmission of requests) of the 2000 Convention and Articles 4 (channels of communication) and 8 (procedure) of the Second Additional Protocol have the force of law in their application to the State.

(2) For the purposes of subsection (1)—

(a) references in the Articles mentioned in that subsection to a requested state or requested party or to authorities, judicial authorities or competent authorities of that state or party shall be construed as references to, where appropriate, the Central Authority or the judge or court concerned, and

(b) references to those Articles are references to the Articles as modified by any reservation or declaration made in relation to them.

6. Requests (general).

6.— (1) Subject to the provisions of this Act concerning particular requests, the relevant international instrument concerned has effect in the State in relation to—

(a) the form of the requests and the information they are to provide,

(b) the action that may be taken where a request does not comply with the provisions of the instrument or where the information provided is not sufficient to enable the request to be dealt with,

(d) any requirements in the instrument relating to the protection, disclosure, use or transmission of information or evidence received under it,

(e) the formalities and procedures in dealing with requests, unless those formalities and procedures are contrary to the fundamental principles of the law of the State, and

(f) the transmission and mode of transmission of requests, including, where so provided for in the instrument, transmissions via the International Criminal Police Organisation (Interpol) in urgent cases.

(2) This Act applies only to requests made after the relevant international instrument has entered into force, or, as the case may be, has been applied, between the State and the designated state concerned.

(3) Requests received and not executed before the date on which they would fall to be dealt with under this Act shall be dealt with, or continue to be dealt with, as if this Act had not been passed.

(4) Requests shall—

(a) be addressed to the Central Authority, unless the relevant international instrument provides otherwise,

(b) where appropriate, indicate the relevant international instrument under which the request is being made, and

(c) be in writing or in any form capable of producing a written record under conditions allowing their authenticity to be established.

(5) Requests to a designated state and any supporting or related documents shall be accompanied, where appropriate, by a translation of the requests and of any such documents, or of the material parts of them, into the official language or one of the official languages of that state, unless it is known that such a translation is not required by the appropriate authority in the designated state concerned.

(6) Requests from a designated state and any supporting or related documents, if not in Irish or English, shall be accompanied by a translation into either of those languages of the requests and of any such documents or the material parts of them.

(7) The Central Authority may—

(a) accept requests and any supporting or related documents as evidence of the matters mentioned in them unless it has information to the contrary, and

(b) seek such additional information from the requesting authority concerned as may be necessary to enable a decision to be taken on a request.

(8) Action on a request may be postponed by the Minister if the action would prejudice criminal proceedings or a criminal investigation.

(9) Before refusing a request or postponing action on it the Minister shall, where appropriate and having consulted the requesting authority, consider whether the request may be granted partially or subject to such conditions as he or she considers necessary.

(10) Reasons shall be given for any such refusal or postponement.

(11) The Minister shall also inform a requesting authority of any circumstances that make it impossible to comply with the request or are likely to delay compliance significantly.

7. Transmission of evidence to designated state (general).

7.— (1) Evidence obtained in the State in compliance with a request shall be transmitted to the designated state concerned in accordance with the directions of the Minister.

(2) If any such evidence is to be accompanied by a certificate, affidavit or other verifying document, the judge concerned or, as the case may be, the appropriate member of the Garda Síochána or officer of the Revenue Commissioners, shall supply the required document for transmission to the designated state.

(3) Where the evidence consists of a document, the original or a copy shall be transmitted and, where it consists of any other item, the item itself or a description, photograph or other representation of it shall be transmitted, as may be necessary to comply with the request.

8. Central Authority.

8.— (1) The Minister is the Central Authority for the purposes of this Act.

(2) The Central Authority has the function of receiving, transmitting and otherwise dealing with requests, except those made under Part 3, and of co-operating, in accordance with the relevant international instrument, with corresponding persons or bodies in designated states in relation to requests received from them.

(3) The Minister may, if he or she considers it appropriate, designate persons to perform specified functions of the Central Authority, and different persons may be so designated to perform different such functions.

(4) While such a designation is in force, a reference in this Act to the Central Authority, in so far as it relates to the performance of a function specified in the designation, is to be construed as a reference to the person so designated to perform that function.

(5) The Minister may amend or revoke a designation.

(6) The Minister shall, by notice in writing, inform the General Secretariat of the Council of the European Union of the names of any persons designated for the time being under this section.

9. Spontaneous exchange of information.

9.— (1) Without prejudice to section 100, the Director of Public Prosecutions, Commissioner of the Garda Síochána or Revenue Commissioners (in this section referred to as the “providing authority”) may, in accordance with the relevant international instrument and without receiving a request to that effect, communicate information to a competent authority in a designated state either relating to matters which might give rise to such a request or for the purpose of current criminal investigations or criminal proceedings or of initiating either of them.

(2) The providing authority may impose conditions on the use by the competent authority of the information so communicated.

(3) Subsection (2) does not apply in relation to the competent authority of a designated state which has made a declaration under paragraph 4 of Article 11 of the Second Additional Protocol unless, as required by such a declaration, the authority has received prior notice of the nature of the information to be communicated and has agreed to its being communicated.

(4) Any conditions imposed by a competent authority in a designated state on the use of information communicated by it to the providing authority shall be complied with pursuant to the relevant international instrument.

(5) In this section references to a competent authority in a designated state are references to the authority in such a state appearing to the providing authority to be the appropriate authority for receiving or communicating the information concerned.

10. Repeals.

10.— Without prejudice to section 11, the following provisions are repealed:

(a) Part VII (International Co-operation) of the Act of 1994 and the Second Schedule (taking of evidence for use outside State) thereto;

(b) section 15 (amendment of Act of 1994) of the Criminal Justice (Miscellaneous Provisions) Act 1997; and

11. Saving.

11.— (1) Where—

(a) mutual assistance between the State and another state was provided for by or under a provision of Part VII of the Act of 1994 before the repeal of that Part on the commencement of section 10(a), and

(b) the state is not designated under section 4 for the purposes of that assistance,

the assistance concerned shall continue to be provided under and in accordance with the corresponding provision of this Act, which accordingly shall have effect, with any necessary modifications, for that purpose.

(2) The reference in subsection (1) to Part VII of the Act of 1994 includes a reference to the Second Schedule to that Act.

(3) References in subsection (1) to a state include references to a country or territory within the meaning of the said Part VII.

PART 2 Information about Financial Transactions for Criminal Investigation Purposes

12. Interpretation(Part 2).

12.— (1) In this Part, except where the context otherwise requires—

“account” means an account, of whatever nature, in a financial institution, whether in the State or a designated state, which is held or controlled by a person and includes—

(a) an account held by the person under a different name or different version of the person’s name,

(b) an account held by the person jointly with another person,

(c) an account held by another person on which the person is authorised to operate, whether by way of a power of attorney or otherwise,

(d) an account held by another person (in this Part referred to as a “sending or recipient account”) to or from which payments have been or are being made from or to an account in the name of a person specified in an account information order, and

(e) any other account held by another person, where information in relation to it would be relevant to the investigation referred to in the request;

“account information order” means an order under section 13 or 17 that a specified financial institution shall, within a time to be specified by the applicant for the order by notice in writing or any extension of that time under subsection (2)—

(a) state—

(i) whether an account or accounts in the name or names of a specified person or persons or in a specified different version or versions of that name or those names is or are held in the financial institution, and

(ii) whether it has become aware, in the ordinary course of business, of any other account or accounts in the institution on which the specified person or persons is or are authorised to operate, whether by way of a power of attorney or otherwise,

and

(b) if so, provide to the applicant or his or her nominee, in a manner and form specified in the notice, any information that it has in relation to any such account or accounts and any sending or recipient accounts, including details of any operations thereon specified in the notice during any period so specified;

“account monitoring order” means an order under section 13 or 17 that a specified financial institution shall enable the applicant for the order to monitor, during a period, and in a manner and form, specified by the applicant by notice in writing, any operations so specified that are being carried out on an account or accounts in a specified name or names or in a specified different version or versions of that name or those names in the financial institution;

“financial institution” means—

(a) if the financial institution is in the State—

(i) a person who holds or has held a licence from the F22[Central Bank of Ireland] under section 9 of the Central Bank Act 1971,

(ii) a person referred to in section 7(4) of that Act, or

(iii) a credit institution (within the meaning of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992)) which has been authorised by that Authority to carry on the business of a credit institution in accordance with the supervisory enactments within the meaning of those Regulations,

(b) if the financial institution is in a designated state, a bank or a non-bank financial institution;

“form”, where it occurs in the definition of account information order and account monitoring order, means a form which—

(a) is permanent and legible, whether or not it has been converted into such a form from an electronic or other non-legible form, or

(b) if so specified by the applicant for such an order, is an electronic or other non-legible form which is capable of being converted into a permanent and legible form;

“political offence”—

(a) includes an offence connected with a political offence,

(b) does not include—

(i) an offence to which section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act 1987 (the “ Act of 1987 ”) applies, or

(ii) an offence, as defined in subsection (3), of conspiracy or association to commit such an offence;

“2001 Protocol” means the Protocol of 16 October 2001 to the 2000 Convention;

“sending or recipient account” has the meaning given to it by paragraph (d) of the definition of “account”.

(2) The time specified by an applicant for an account information order—

(a) is a time within which a financial institution may reasonably be expected to provide the information specified in the order, and

(b) may be extended for a period specified by the applicant in a further notice in writing, after consultation with the financial institution concerned.

(3) The offence of conspiracy or association referred to in paragraph (b)(ii) of the definition of “political offence” is an offence—

(a) which is constituted by the behaviour described in Article 3(4) of the Convention relating to Extradition between the Member States of the European Union, done at Brussels on 27 September 1996, namely, behaviour by a person which contributes to the commission, by a group of persons acting with a common purpose, of—

(i) one or more than one offence in the field of terrorism as mentioned in Articles 1 and 2 of the 1977 Terrorism Convention, drug trafficking or other forms of organised crime, or

(ii) other acts of violence against the life, physical integrity or liberty of a person or creating a collective danger for persons,

and

(b) which is punishable, even if the person does not take part in the actual commission of the offence or offences, by a term of imprisonment for a period of 12 months or a more severe penalty,

where the contribution was intentional and made with knowledge of the purpose and general criminal activity of the group or of its intention to commit the offence or offences concerned.

(4) The reference in this section to section 3 of the Act of 1987 is to that section as amended by section 2 of the Extradition (Amendment) Act 1994 and sections 12 and 27 of the Extradition (European Union Conventions) Act 2001.

Information about financial transactions for use in the State

13. Account information order and account monitoring order.

13.— (1) For the purposes of a criminal investigation in the State, a member of the Garda Síochána not below the rank of inspector may apply ex parte and otherwise than in public to a judge of the High Court for an account information order or an account monitoring order or for both of those orders.

(2) The application may relate to—

(a) all financial institutions in the State or the designated state concerned,

(b) a category or categories of such financial institutions, or

(3) The judge may make the order or orders applied for in relation to the financial institution or financial institutions specified in the application if satisfied that—

(a) the Garda Síochána are investigating whether a specified person—

(i) has committed an offence, or

(ii) is in possession or control of assets or proceeds deriving from criminal conduct,

and

(b) there are reasonable grounds for believing—

(i) that the financial institution or financial institutions concerned may have information which is required for the purposes of the investigation, and

(ii) that it is in the public interest that any such information should be disclosed for those purposes, having regard to the benefit likely to accrue to the investigation and any other relevant circumstances.

(4) An order under this section shall contain sufficient information in relation to any account specified in it to enable the account to be identified by the financial institution concerned.

(5) An order under this section has effect notwithstanding any obligation as to secrecy or any other restriction on disclosure imposed by statute or otherwise.

(6) A notice in writing given to a financial institution pursuant to an order under this section and specifying operations on accounts kept therein may be modified by the applicant for the order, in consultation with the financial institution, with a view to avoiding as far as practicable the provision by that institution of information that is not relevant to the criminal investigation concerned.

(7) Any information provided by a financial institution in the State in compliance with an order under this section is not admissible in evidence against the financial institution, except in any proceedings for an offence under section 21(1)(b).

14. Request to designated state for information about financial transactions.

14.— (1) Where an account information order or account monitoring order relates to information concerning an account or accounts in a financial institution in a designated state, the Director of Public Prosecutions may send the order to the Central Authority for transmission to a competent authority in that state, together with a request by the Director for the supply of the information to which the order relates.

(2) Notwithstanding subsection (1), the Director may make a request directly to a competent authority in a designated state for the supply of any information to which an account information order or account monitoring order could relate if a criminal investigation is taking place in the State and the Director has reasonable grounds for believing—

(a) that a financial institution or financial institutions in the designated state may have information which is required for the purposes of the investigation, and

(b) that it is in the public interest that any such information should be disclosed for those purposes, having regard to the benefit likely to accrue to the investigation and any other relevant circumstances.

(3) Any request under this section shall include—

(a) a statement by the Director that an investigation is taking place into a specified offence and that the person mentioned in the request is the subject of the investigation, and

(b) the following information:

(i) why the Director considers that the requested information is likely to be of substantial value for the purposes of the investigation;

(ii) why he or she considers that a financial institution or financial institutions in the designated state may keep the account or accounts concerned;

(iii) if available, the name or names of that institution or those institutions;

(iv) the maximum period of imprisonment to which a person of full capacity and not previously convicted is liable on conviction for the offence;

(v) the content of subsections (4) and (5); and

(vi) any other information that may facilitate compliance with the request.

(4) Information obtained in response to a request under this section shall not, without the consent of the competent authority, be used for any purpose other than that permitted by the relevant international instrument.

(5) When any such information is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to the competent authority unless the authority indicates that it need not be returned.

Information about financial transactions for use in designated state

15. Request from designated state for information about financial transactions.

15.— (1) This section applies to a request for information in relation to any account or accounts that may be held in a financial institution in the State by a person who is the subject of a criminal investigation in a designated state.

(2) The request shall include—

(a) a statement that a specified offence has been committed in the designated state concerned and that the person mentioned in the request is the subject of an investigation into the offence,

(b) a statement that—

(i) any information that may be supplied in response to the request will not, without the Minister’s prior consent, be used for any purpose other than that specified in the request, and

(ii) the record of any such information will be returned when no longer required for the purpose so specified (or any other purpose for which such consent has been obtained), unless the Minister indicates that its return is not required,

and

(i) why the requesting authority considers that the requested information is likely to be of substantial value for the purposes of the investigation;

(ii) why it considers that a financial institution or financial institutions in the State may hold the account or accounts concerned;

(iii) if available, the name or names of that institution or those institutions;

F23[(iv) in the case of request from a designated state other than the United Kingdom, the maximum period of imprisonment under the law of the designated state by which the offence is punishable; and]

(v) any other information that may facilitate compliance with the request.

(3) In subsection (1), “information” includes—

(a) information as to whether a financial institution in the State keeps an account or accounts mentioned in that subsection,

(b) details of any such account or accounts,

16. Action on request.

16.— The Minister may, if of opinion that the request complies with section 15, authorise a member of the Garda Síochána not below the rank of inspector to apply to a judge of the High Court for an account information order or account monitoring order, or for both of those orders, in relation to the information requested.

17. Account information order and account monitoring order on foot of request.

17.— (1) On receipt of an authorisation under section 16 a member of the Garda Síochána not below the rank of inspector may apply ex parte and otherwise than in public to a judge of the High Court for an account information order or account monitoring order or for both of those orders.

(2) The application—

(a) may relate to—

(i) all financial institutions in the State,

(ii) a category or categories of such financial institutions, or

(iii) a particular such financial institution or particular such financial institutions,

and

(b) shall be accompanied by a copy of the request concerned and of any supporting or related documents.

(3) The judge may make the order or orders applied for in relation to the financial institution or financial institutions specified in the application if satisfied that—

(a) there are reasonable grounds for believing that an offence under the law of the designated state concerned has been committed,

(b) the person mentioned in the request is the subject of an investigation into the offence,

(d) there are reasonable grounds for believing that the specified financial institution or financial institutions may have information which is required for the purposes of the investigation.

(4) An order under this section shall contain sufficient information in relation to any account specified in it to enable the account to be identified by the financial institution concerned.

(5) An order under this section has effect notwithstanding any obligation as to secrecy or any other restriction on disclosure imposed by statute or otherwise.

(6) Any information provided by a financial institution in compliance with such an order is not admissible in evidence against it, except in any proceedings for an offence under section 21(1)(b).

18. Transmission of information obtained to requesting authority.

18.— Information disclosed by a financial institution in compliance with an account information order or account monitoring order under section 17 shall be transmitted to the requesting authority concerned in accordance with arrangements approved by the Minister.

19. Requesting authority to be informed of possible further investigations.

19.— During the execution of a request under this Part the Commissioner of the Garda Síochána, if of opinion that it may be appropriate to undertake investigations which were not initially foreseen or could not be specified when the request was made, shall inform the requesting authority accordingly.

Supplementary

20. Variation or discharge of account information order or account monitoring order.

20.— (1) A judge of the High Court may vary or discharge an account information order or account monitoring order on application by—

(a) a member of the Garda Síochána not below the rank of inspector, or

(b) any financial institution affected by the order.

(2) Where the application relates to an order under section 17, the judge shall arrange for the competent authority in the designated state concerned to be notified—

(a) of the application and the grounds for making it, so as to enable the authority to submit any arguments that it deems necessary at the hearing of the application, and

(b) of the outcome of the application.

(3) The application shall be heard otherwise than in public.

21. Offences under this Part.

21.— (1) A financial institution in the State is guilty of an offence—

(a) if, without reasonable excuse, it does not comply with an account information order or account monitoring order, or

(b) if, while purporting to comply with such an order, it—

(i) makes a statement which it knows to be false or misleading in a material particular, or

(ii) recklessly makes a statement which is false or misleading in such a particular.

(2) Subsection (1) is without prejudice to the law relating to contempt of court.

(3) A financial institution in the State and any person who is a director, or an officer or other employee, of the institution is guilty of an offence if the institution or person, knowing or suspecting that an application has been made under this Part for an account information order or an account monitoring order or both, makes any disclosure which prejudices, or is likely to prejudice, the criminal investigation giving rise to the application.

(4) In proceedings for an offence under subsection (3) it is a defence for the financial institution or person to prove that the institution or person—

(a) did not know or suspect that the disclosure to which the proceedings relate prejudiced, or was likely to prejudice, the criminal investigation concerned, or

(b) had lawful authority or reasonable excuse for making the disclosure.

(5) A person who is guilty of an offence under subsection (3) is liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, and

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

(6) A financial institution which is guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €5,000, and

(b) on conviction on indictment, to a fine.

PART 3 Interception of Telecommunications Messages

Introductory

22. Interpretation (Part 3).

22.— In this Part, unless the context otherwise requires—

“Act of 1983” means the Postal and Telecommunications Services Act 1983;

“Act of 1993” means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;

“competent authority” means the person or body in a member state who or which in the opinion of the Minister is the competent authority for the purposes of Title III of the 2000 Convention;

“interception” means the interception of telecommunication messages to or from a person specified in the authorisation of the interception at a telecommunications address so specified;

“telecommunications address” has the meaning that it has in the Act of 1993.

Requests for interception where technical assistance required

23. Request to member state for interception.

23.— (1) This section applies where—

(a) for the purpose of a criminal investigation the Minister has given an authorisation of an interception under section 2 of the Act of 1993,

(b) the person specified in the authorisation is present in the State or a member state, and

(2) Where this section applies, the Minister may cause a request to be made to a competent authority in the member state for—

(a) the interception by that authority and immediate transmission to the Commissioner of the Garda Síochána or a member of the Garda Síochána nominated by him or her of telecommunications messages to or from the telecommunications address concerned, or

(b) the interception and recording of the messages and the transmission of the recording to the Commissioner or member.

(3) The request shall—

(a) confirm that an authorisation of an interception has been given by the Minister under the Act of 1993 for the purpose of a criminal investigation,

(b) give sufficient information to identify the person whose telecommunications messages are to be intercepted,

(d) state the desired duration of the interception,

(e) provide sufficient technical data, including the network connection number of the telecommunications address concerned, to ensure that the request can be met, and

(f) where the request—

(i) relates to a specified person who is present in the member state concerned, or

(ii) is a request under subsection (2)(b),

provide a summary of the facts relating to the offence being investigated and any further information that the competent authority may require to enable it to decide whether the requested interception would be authorised by it in similar circumstances.

(4) If the request relates to a person who is present in a member state other than that from which the technical assistance is required, that other member state shall be notified of the authorisation in accordance with section 26.

(5) Information received in response to the request is deemed to be official information for the purposes of the Official Secrets Act 1963.

(6) For the removal of doubt, it is declared that an authorisation may be given under section 2 of the Act of 1993 where the person whose telecommunications messages are to be intercepted is present in a member state.

24. Request to State for interception.

24.— (1) This section applies where—

(a) a criminal investigation is taking place in a member state,

(b) a lawful interception order or warrant for the interception of telecommunications messages to or from a specified person or telecommunications address has been issued in the member state in connection with the investigation,

(i) the interception and immediate transmission to the authority or a person nominated by it of telecommunications messages to or from the telecommunications address concerned, or

(ii) the interception and recording of the messages and the transmission of the recording to the authority or the person nominated by it, and

(d) the specified person—

(i) is present in the member state or another member state and the competent authority in the former member state needs the technical assistance of the State to intercept the telecommunications messages, or

(ii) is present in the State and the interception can be made therein.

(2) The request shall—

(a) indicate the name of the competent authority,

(b) confirm that a lawful interception order or warrant has been issued in connection with a criminal investigation,

(d) give an indication of the criminal conduct under investigation,

(e) state the desired duration of the interception,

(f) provide sufficient technical data, including the network connection number of the telecommunications address concerned, to ensure that the request can be met, and

(g) if the person is present in a member state other than that in which the lawful interception order or warrant has been issued and from which no technical assistance is required to carry out the interception, confirm that that member state has been informed of the order or warrant pursuant to Article 20(2)(a) of the 2000 Convention.

(3) Where—

(a) the person whose telecommunications messages are to be intercepted is present in the State, or

(b) the request is for the interception and recording of the messages and transmission of the recording,

the request shall also include a summary of the facts relating to the offence being investigated and any further information that the Minister may require to enable him or her to decide whether the conduct constituting the offence, if it occurred in the State, would constitute a serious offence within the meaning of the Act of 1993 and otherwise justify the giving of an authorisation under that Act.

25. Action on request.

25.— (1) Subject to subsection (3), where the request is for the interception and immediate transmission of specified telecommunications messages, the Minister may give an authorisation of the interception if of opinion that section 24 applies and is complied with in relation to the case.

(2) Subject to subsection (3), where—

(a) the request is for the interception and recording of specified telecommunication messages and transmission of the recording, and

(b) immediate transmission of the interception is not possible—

(i) from the State,

(ii) to the member state, or

(iii) in both of those cases,

the Minister may give an authorisation of the interception if of opinion that section 24 applies and is complied with in relation to the case.

(3) Where in a case referred to in subsection (1) or (2), the person who is the subject of the request is present in the State, the Minister may give an authorisation of the interception only if of opinion that—

(a) the conduct being investigated in the requesting state would, if it occurred in the State, constitute a serious offence within the meaning of the Act of 1993 and otherwise justify the giving of an authorisation under that Act, and

(b) section 24 applies and is complied with in relation to the case.

(4) If a declaration is made by the State under the 2000 Convention that it is bound by paragraph 6 (as given effect to by subsections (2) and (3)) of Article 18 of the Convention only where immediate transmission from the State of the interception concerned is not possible, paragraphs (b)(ii) and (b)(iii) of subsection (2) thereupon cease to have effect.

(5) Where the person who is the subject of the request is present in the State, the Minister may make the authorisation subject to any condition (including a condition related to the use of the intercepted messages) that would apply if the authorisation were one given under section 2 of the Act of 1993 in relation to a person present in the State.

(6) Where an authorisation is given, the Commissioner of the Garda Síochána shall—

(a) arrange for the transmission of the telecommunications messages concerned to the competent authority in the member state or a person nominated by it, or

(b) as appropriate, arrange for the recording of the messages and transmission of the recording to that authority or person.

(7) In considering any request under Article 18.8 of the 2000 Convention for a transcript of such a recording, the Minister shall have regard to all the circumstances of the particular case; and the granting of such a request may be subject to any condition to which authorisation of the interception may be subject.

(8) The authorisation is deemed to be an authorisation under section 2 of the Act of 1993, and that Act and section 110 of the Act of 1983 (in so far as it relates to directions related to such authorisations) have effect accordingly, with any necessary modifications, for all purposes as if the authorisation and any such directions had been given under the Act of 1993 and the Act of 1983.

Notifications of other interceptions

26. Notification to member state of interception.

26.— (1) Where—

(a) for the purpose of a criminal investigation the Minister has given an authorisation of an interception under section 2 of the Act of 1993,

(b) the telecommunications address of the person specified in the authorisation is being used on the territory of a member state, and

the Minister shall inform the competent authority in the member state of the authorisation—

(i) before the interception, if the Minister is then aware that the person is present on that territory, or

(ii) in any other case, immediately after the Minister becomes so aware.

(2) The notification shall include the following information:

(a) confirmation that authorisation of an interception has been given by warrant under section 2 of the Act of 1993 in connection with a criminal investigation;

(b) details sufficient to identify the subject of the interception;

(d) the expected duration of the interception.

(3) The Minister shall comply with any condition, requirement or request imposed or made by the competent authority in relation to the interception pursuant to Article 20.4 of the 2000 Convention.

(4) Pending a decision by the competent authority on whether to consent to the interception or to its continuance—

(a) any interception made may be continued, but

(b) material intercepted may not be used unless—

(i) otherwise agreed between the Minister and the competent authority, or

(ii) in connection with taking urgent measures to prevent an immediate and serious threat to public security (including measures in respect of any serious offence), in which case the Minister shall inform the competent authority of any such use and the reasons justifying it.

(5) In subsection (4)(b)(ii), “serious offence” means an offence specified in the Schedule to the Bail Act 1997 for which a person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of 5 years or by a more severe penalty.

(6) If so requested by the competent authority, the Minister shall supply it with a summary of the facts of the case and any further information necessary to enable it to decide whether an interception would be authorised by it in similar circumstances.

(7) Subsection (6) is without prejudice to subsection (4), unless otherwise agreed between the Minister and the competent authority.

(8) Where the Minister is of opinion that the information to be provided under subsection (2) is of a particularly sensitive nature, the information may, with the agreement of the competent authority concerned, be transmitted to it through a specific person or body.

(9) This section does not apply in relation to a member state which has declared in accordance with the 2000 Convention that it is not necessary to provide it with information on interceptions as envisaged in Article 20 of that Convention.

27. Notification by member state of interception.

27.— (1) This section applies where—

(a) the competent authority in a member state has authorised an interception,

(b) the telecommunications address of the person specified in the authorisation is being used on the territory of the State,

(d) the competent authority notifies the Minister accordingly in accordance with Article 20 of the 2000 Convention.

(2) Where this section applies, the Minister, without delay and at the latest within a period specified in subsection (7), shall proceed in accordance with subsection (3) or subsections (4) and (5), as appropriate.

(3) If an authorisation would be given under section 2 of the Act of 1993 in similar circumstances, the Minister shall authorise the interception to be carried out or continued.

(4) If—

(a) an authorisation under the said section 2 would not be given,

(b) section 3 applies, or

the Minister shall require that the interception not be carried out or be terminated and give the reasons for so requiring in writing.

(5) Where subsection (4) applies, the Minister shall require that any material already intercepted while the telecommunications address was being used in the State may not be used or may be used only under specified conditions, the justification for which shall be communicated by the Minister to the competent authority in writing.

(6) The Minister may request the competent authority to supply a summary of the facts of the case and any further information necessary to enable him or her to decide whether an authorisation would be given under section 2 of the Act of 1993 in similar circumstances.

(7) The following period is specified for the purposes of subsection (2):

(a) a period not exceeding 96 hours; or

(b) where it is necessary to determine whether an authorisation under section 2 of the Act of 1993 would be given in similar circumstances, a period not exceeding in total 12 days.

(8) Where paragraph (b) of subsection (7) applies, the Minister shall communicate in writing to the competent authority the conditions which justify the request for an extension of the period mentioned in paragraph (a) of that subsection.

(9) Information provided under this section by the competent authority is deemed to be official information for the purposes of the Official Secrets Act 1963.

Miscellaneous

28. Indirect interception of telecommunications messages.

28.— (1) In this section, “authorised undertaking” has the meaning given to it by the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2003 (S.I. No. 306 of 2003), as amended by the European Communities (Electronic Communications Networks and Services) (Authorisation) (Amendment) Regulations 2007 (S.I. No. 372 of 2007).

(2) Where—

(a) a person is present in the State,

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