Criminal Justice (Mutual Assistance) Act 2008

• (b) an authorisation has been given under section 2 of the Act of 1993 for the interception of telecommunications messages to or from the person,

• (c) the messages cannot be directly intercepted in the State, but

• (d) an authorised undertaking which has received directions under section 110 of the Act of 1983 in relation to interceptions can facilitate interception of the messages by accessing interception equipment in a member state,

the authorised undertaking shall facilitate the interception of the messages by accessing that equipment.

• (3) Where—

• (a) a person is present in a member state,

• (b) a lawful order or warrant for the interception of telecommunications messages to or from the person has been made or issued in the member state for the purposes of a criminal investigation and is in force,

• (c) the messages cannot be directly intercepted in the member state, but

• (d) an authorised undertaking which has received directions under section 110 of the Act of 1983 in relation to interceptions—

• (i) can directly intercept the messages, and

• (ii) has interception equipment enabling a provider of telecommunications services in the member state to intercept them,

the authorised undertaking shall facilitate the interception of the messages by the provider.

29. Application of Act of 1993 in relation to this Part.

29.— The Act of 1993 applies and has effect in relation to this Part with the necessary modifications, including the following:

• (a) references in the Act of 1993 to “this Act” are to be construed as references to this Part;

• (b) references therein to an authorisation are to be construed as references to—

• (i) an authorisation deemed under section 25(8) to be an authorisation under section 2 of the Act of 1993, or

• (ii) an authorisation under section 27(3),

as the case may be;

• (c) references therein to a contravention of a provision of the Act of 1993 are to be construed as references to a contravention of a provision of this Part;

• (d) references therein to official documents are to be construed as references to official documents available to the Minister in connection with a request under this Part; and

• (e) references to a person in sections 8(5) and 9(11) of the Act of 1993 are to be construed as references to a person who is present in the State.

30. Amendment of section 110 of Act of 1983.

30.— Section 110 (general ministerial powers in relation to postal and telecommunications services) of the Act of 1983 is amended by the addition of the following subsections:

• “(6) A person who, without reasonable excuse, does not comply with a direction under this section is guilty of an offence and liable—

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

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

• (7) Proceedings for an offence under subsection (6), including any appeal or subsequent proceedings, shall be held in camera.”.

PART 4 Freezing, Confiscation and Forfeiture of Property

Chapter 1 Interpretation

31. Interpretation(Part 4).

31.— (1) In this Part:

“appeal” includes any proceedings for the discharge or setting aside of a judgment and any application for a new trial or stay of execution;

F24["certificate" means—

• (a) the certificate provided for in Article 9 of the 2003 Framework Decision, the standard form of which is set out in the Annex to that Framework Decision, or

• (b) the certificate provided for in Article 4 of the 2006 Framework Decision, the standard form of which is set out in the Annex to that Framework Decision,

as the context requires;]

F25["competent authority"—

• (a) in relation to a member state, means the authority or authorities determined by that state in accordance with Article 3 of the 2006 Framework Decision to be the competent authority of that member state, and

• (b) in relation to a designated state other than one referred to in paragraph (a), means the authority or authorities determined by that state in accordance with the relevant international instrument to be the competent authority of that designated state;]

“confiscation co-operation order” has the meaning given to it by section 51;

“confiscation order” means a confiscation order within the meaning of the Act of 1994;

“defendant” means the person to whose property an external freezing order or external confiscation order relates;

“external confiscation order” means an order made by a court in a designated state for the purpose of—

• (a) recovering property in the State which was received or obtained as a result of or in connection with conduct which would, if it occurred in the State, constitute an indictable offence,

• (b) recovering the value of such property, or

• (c) depriving a person of a pecuniary advantage so received or obtained;

“external forfeiture order” means an order for the forfeiture of property in the State which is made by a court in a designated state in or in connection with proceedings resulting from conduct which would, if it occurred in the State, constitute an indictable offence;

“external freezing order” means any measure—

• F26[(a) taken provisionally by a competent judicial authority of -

• (i) a designated state in criminal proceedings, or

• (ii) the United Kingdom in a criminal investigation,

to prevent the destruction, transformation, moving, transfer, disposal or use of specified property in the State that could be subject to confiscation or be evidence in those proceedings, and]

• (b) made for the purpose of—

• (i) subsequent confiscation of the property, or

• (ii) protection of evidence;

“forfeiture co-operation order” has the meaning given to it by section 60;

“freezing co-operation order” has the meaning given to it by section 35;

“freezing order” means—

• (a) an order under section 24 (as amended by section 105(a) of this Act) of the Act of 1994,

• (b) an order under section 14 or 15 of the Criminal Justice (Terrorist Offences) Act 2005, or

• (c) an order under section 32,

which relates to property in a designated state or in so far as it does so;

“issuing judicial authority” means a judicial authority in a designated state, as defined in the law of that state, which makes, validates or in any way confirms an external freezing order;

“issuing state” means the designated state in which an issuing judicial authority exercises jurisdiction;

“property” includes property of any description, corporeal or incorporeal, movable or immovable and wherever situated, which the competent judicial authority in the designated state considers—

• (a) to be the proceeds of an offence,

• (b) to be equivalent to either the full value or a part of the value of such proceeds, or

• (c) to be the instrumentalities or objects of an offence,

and includes documents evidencing title to or an interest in the property;

“realisable property” means—

• F27[(a) in relation to a freezing co-operation order, a confiscation co-operation order or an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state made in respect of specified property, the property specified in the order, and]

• (b) in any other case—

• (i) any property held by the defendant, and

• (ii) any property held by a person to whom the defendant has directly or indirectly made a gift,

but does not include property which is the subject of an order made by a court in other proceedings in the State unless or until that order is discharged.

• (2) For the purposes of this Part, dealing with property held by any person includes (without prejudice to the generality of the expression)—

• (a) where a debt is owed to that person, making a payment to any person in settlement or reduction of the debt, and

• (b) removing the property from the State.

• (3) References in this Part to a gift are to a gift which, if the external confiscation order were a confiscation order, would be a gift caught by the Act of 1994, and the provisions of that Act concerning a gift so caught apply and have effect in relation to a gift referred to in this Part.

Chapter 2 Freezing of Property

32. Freezing order relating to evidence.

32.— (1) This section applies where criminal proceedings have been instituted, or a criminal investigation is taking place, in the State.

• (2) Where this section applies, the Director of Public Prosecutions or 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 order (a “freezing order”) prohibiting the destruction, transformation, moving, transfer, disposal or use by any person of specified property, whether in or outside the State, that could be evidence in those proceedings or, as the case may be, in any such proceedings that may be instituted.

• (3) The judge may make the order applied for if satisfied—

• (a) that criminal proceedings have been instituted or a criminal investigation is taking place,

• (b) that evidence relating to the offence concerned—

• (i) is on specified premises,

• (ii) is likely to be of substantial value (whether by itself or together with other evidence) to the proceedings or investigation, and

• (iii) is likely to be admissible at a trial for the offence,

and

• (c) in case the evidence is in a designated state, that a request has been or will be made for it to be transferred to the Commissioner of the Garda Síochána.

• (4) An order under this section does not apply in relation to any documents subject to legal privilege.

• (5) The High Court may vary or discharge an order under this section on application by—

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

• (b) any person affected by it,

and shall discharge it if its continuance in force would not be in the interests of justice.

• (6) If—

• (a) an order under this section is transmitted for enforcement in a designated state pursuant to F28[section 33], and

• (b) the order is later varied or discharged in relation to property in the designated state,

the Court shall cause the Central Authority to be informed as soon as practicable of the variation or discharge, and that Authority shall thereupon notify the appropriate authority in the designated state accordingly.

33. Transmission of freezing order for enforcement outside the State.

33.— (1) If—

• (a) any property to which an application for a freezing order relates is in a member state, and

• (b) the application is granted,

the applicant may request the judge concerned to cause a certificate to be completed.

• (2) The certificate shall—

• (a) bear a signature (which may be an electronic signature) by or on behalf of the court concerned, and

• (b) include a statement as to the accuracy of the information in the certificate.

• (3) If the freezing order is an order under section 32 for the protection of evidence, the court concerned may indicate to the judicial authority of the member state any formalities and procedures in enforcing the order that are necessary to ensure that the evidence is admissible in criminal proceedings.

• (4) The freezing order and certificate shall be sent by a registrar of the Court to the applicant, who shall send them to the Central Authority for transmission to the appropriate authority in the member state concerned with a view to having the freezing order enforced.

• (5) If a freezing order relates to property in a designated state (other than a member state), the Director of Public Prosecutions may send to the Central Authority, for transmission to the appropriate authority in the designated state with a view to having the freezing order enforced—

• (a) a duly authenticated copy of the order, and

• (b) such other information as may be required by the appropriate authority in accordance with the relevant international instrument.

34. Transmission of external freezing orders to State for enforcement.

34.— (1) An external freezing order from a member state and a certificate duly completed and certified as accurate by the issuing judicial authority together with a request or instruction relating to the subsequent treatment of the evidence or property concerned shall, unless otherwise provided by a declaration by the State under Article 4.2 of the F29[2003 Framework Decision], be transmitted to the Central Authority in connection with a request for enforcement of the order.

• (2) A request from any other designated state for the enforcement of an external freezing order shall be accompanied by—

• (a) a duly certified copy of the order,

• (b) a statement of the grounds—

• (i) for making the order, and

• (ii) for believing that the evidence or property concerned will be subject to an order of confiscation,

and any other information required by the relevant international instrument.

• (3) Transmission of the documents mentioned in subsection (1) or (2) shall be by any means capable of producing a written record under conditions which allow the Central Authority or the High Court to establish the documents’ authenticity.

• (4) An issuing judicial authority is deemed to have complied with subsection (3) if facsimile copies of the external freezing order, the certificate (where appropriate) and any translation thereof are transmitted in compliance with any regulations that may be made under subsection (6).

• (5) If the Central Authority or the High Court is not satisfied that a facsimile copy of a document transmitted in accordance with this section corresponds to the document of which it purports to be such a copy, the Central Authority or the Court shall—

• (a) request the issuing judicial authority to cause the original or a copy of the document to be transmitted to the Central Authority, and

• (b) agree with that judicial authority on the manner in which the original or copy is to be so transmitted.

• (6) The Minister may, if he or she considers it necessary for the purposes of ensuring the accuracy of documents transmitted in accordance with this section, make regulations—

• (a) prescribing procedures to be followed in connection with the transmission of documents in accordance with this section, and

• (b) specifying features to be present in any equipment being used in that connection.

35. Recognition and enforcement of external freezing orders.

35.— (1) The Central Authority shall, on receipt of an external freezing order, certificate (where appropriate), any other supporting or related documents and any translation, forthwith cause an application to be made to the High Court for an order (in this Part referred to as a “freezing co-operation order”) recognising the external freezing order and prohibiting any person from dealing with the property specified in the external freezing order.

• (2) The application may be made ex parte and otherwise than in public and shall be accompanied by the documents mentioned in subsection (1) or copies thereof and, in the case of a designated state (other than a member state), shall be made with the consent of the Minister.

• (3) An application from a member state for the enforcement of an external freezing order shall be dealt with as soon as possible and, whenever practicable, within 24 hours of receipt of the order and a duly completed certificate.

• F30[(3A) An application for the enforcement of an external freezing order from the United Kingdom shall be dealt with —

• (a) as soon as possible, and

• (b) where the designated state informs the Central Authority that there are legitimate grounds to believe that the property specified in the order will be immediately removed or destroyed, where practicable, within 96 hours of receipt of the order, the statement referred to in section 34(2)(b) and any other information required by Title XI of Part Three of the Trade and Cooperation Agreement.]

• (4) On an application under this section the Court may, subject to subsection (5), make a freezing co-operation order, subject to any conditions that may be specified in the order.

• (5) The Court may—

• (a) refuse to make a freezing co-operation order on a ground mentioned in section 3 or 46, or

• (b) postpone its making on a ground mentioned in section 47.

• (6) Where a request from a member state concerns an offence referred to in Article 3(2) of the F31[2003 Framework Decision] which is punishable in that state by a maximum term of imprisonment of not less than 3 years, the Court may not refuse to make a freezing co-operation order solely on the ground that the conduct constituting the offence concerned does not constitute an offence under the law of the State.

• (7) Where—

• (a) an external freezing order is for the protection of evidence,

• (b) it is necessary to ensure that the evidence is admissible in the proceedings concerned, and

• (c) for that purpose certain formalities and procedures in the enforcement of the external freezing order are expressly indicated by the issuing judicial authority,

the freezing co-operation order shall make provision for observing those formalities and procedures, unless their observance would be contrary to the fundamental principles of the law of the State.

• (8) The Court shall cause notice of the freezing co-operation order to be given to any person who appears to be or is affected by it, unless the Court is satisfied that it is not reasonably possible to ascertain the person’s whereabouts.

36. Application, etc., of freezing co-operation orders.

36.— (1) A freezing co-operation order may apply—

• (a) where particular property is specified in the external freezing order, to the property so specified, and

• (b) in any other case—

• (i) to realisable property held by a specified person, whether the property is described in the freezing co-operation order or not, and

• (ii) to any realisable property held by a specified person, being property transferred to the person after the external freezing order was made.

• (2) A freezing co-operation order may make such provision as the Court thinks fit for the living expenses and legal expenses of the person possessing the property concerned.

• (3) The Court—

• (a) may at any time appoint a receiver—

• (i) to take possession of any realisable property to which a freezing co-operation order applies, and

• (ii) in accordance with the Court’s directions, to manage or otherwise deal with the property, subject to such exceptions and conditions as it may specify,

and

• (b) may require any person having possession or control of the property to give up possession of it to the receiver.

• (4) Where the Court has made a freezing co-operation order, a member of the Garda Síochána or an officer of customs and excise may seize any realisable property for the purpose of preventing its removal from the State.

• (5) Property taken possession of under subsection (4) shall be dealt with in accordance with the Court’s directions.

37. Registration of freezing co-operation orders.

37.— (1) Where a freezing co-operation order is made in relation to land, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Property Registration Authority a notice of the making of the order, together with a copy of the order.

• (2) On receipt of those documents the Authority shall—

• (a) if the land is registered land, cause an entry to be made in the register kept by it under the Registration of Deeds and Title Acts 1964 and 2006 inhibiting, until the order is discharged, any dealing with the land and any charge thereon, and

• (b) if the order is subsequently varied or discharged, cause the entry to be varied accordingly or cancelled, as the case may be.

• (3) If subsection (2)(a) does not apply, the Authority shall cause the notice of the making, variation or discharge of the freezing co-operation order to be registered in the register of deeds maintained by the Authority under section 35 of the Registration of Deeds and Title Act 2006.

• (4) Where a freezing co-operation order is made which affects an interest in a company or its property, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Companies a notice of the making of the order, together with a copy of the order.

• (5) On receipt of those documents the Registrar of Companies shall, if the company is a registered company, cause the notice to be entered in the Register of Companies and—

• (a) if the company is an existing company within the meaning of the Companies Acts 1963 to 2006, send a copy of the notice to each director and the secretary of the company at the company’s registered office, or

• (b) in any other case, send a copy of the notice by post to the person resident in the State who has been authorised to accept, on behalf of the company concerned, service of process and any notices required to be served on it.

• (6) In this section—

“Register of Companies” means the Register of Companies maintained under the Companies Acts 1963 to 2006;

“registered company” means—

• (a) a company formed and registered under those Acts,

• (b) an existing company within the meaning of those Acts, or

• (c) a company registered under Part XI of the Companies Act 1963 or the European Communities (Branch Disclosure) Regulations 1993 (S.I. No. 395 of 1993).

38. Exercise of powers under this Chapter by High Court or receiver.

38.— (1) The powers of the High Court under section 36 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to making available for recovery property which may become liable to be recovered under any confiscation co-operation order F32[or, in the case of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, that external confiscation order] that may be made in the defendant’s case.

• (2) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of a gift, to retain or recover the value of any property held by the person.

• (3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

• (4) In exercising the powers no account shall be taken of any obligations of the defendant or the recipient of any gift that conflict with the obligation to satisfy F33[any order referred to in subsection (1)] that may be made in the defendant’s case.

39. Receivers: supplementary provisions.

39.— A receiver appointed under section 36 who takes any action—

• (a) in relation to property which is not realisable property, being an action which he or she would be entitled to take if it were such property,

• (b) believing, and having reasonable grounds for believing, that he or she is entitled to take that action in relation to that property,

is not liable to any person in respect of any loss or damage resulting from the action except in so far as the loss or damage is caused by his or her negligence.

40. Bankruptcy of defendant, etc.

40.— (1) Where a person who holds realisable property is adjudicated bankrupt—

• (a) property for the time being subject to a freezing co-operation order made before the order adjudicating the person bankrupt, and

• (b) any proceeds of property realised by virtue of section 36, for the time being in the hands of a receiver,

is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act 1988.

• (2) Where a person has been adjudicated bankrupt, the powers of the High Court under section 36 or of a receiver appointed under that section shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

• (3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift—

• (a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a freezing co-operation order, and

• (b) any decision as to whether it is void made under any of those sections after the discharge of the freezing co-operation order shall take into account any realisation under this Act of property held by the person to whom the gift was made.

• (4) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before 1 January 1989, this section has effect with the modification that for references to the property of the bankrupt for the purposes of the said Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

41. Property subject to freezing co-operation order dealt with by Official Assignee.

41.— (1) Without prejudice to the generality of any provision of any other enactment, where—

• (a) the Official Assignee or a trustee appointed under Part V of the Bankruptcy Act 1988 seizes or disposes of any property in relation to which his or her functions are not exercisable because it is for the time being subject to a freezing co-operation order, and

• (b) at the time of the seizure or disposal he or she believes, and has reasonable grounds for believing, that he or she is entitled (whether under an order of the court or otherwise) to seize or dispose of the property,

he or she is not liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his or her negligence in so acting, and he or she has a lien on the property, or the proceeds of its sale, for such of his or her expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his or her remuneration as may reasonably be assigned for his or her acting in connection with those proceedings.

• (2) Where the Official Assignee or a trustee appointed as aforesaid incurs expenses in respect of any property mentioned in subsection (1)(a) and, when doing so, does not know and has no reasonable grounds for believing that the property is subject to a freezing co-operation order, he or she is entitled (whether or not he or she has seized or disposed of that property so as to have a lien) to payment of those expenses under section 42.

42. Application of proceeds of realisation.

42.— (1) Money paid or recovered in respect of a freezing co-operation order (including any variation of such an order) may, to the extent necessary, be applied to meet expenses incurred in exercising any powers under this Act and the remuneration of any person employed for that purpose.

• (2) Money paid or recovered in respect of a freezing co-operation order, after payment of any expenses or remuneration in accordance with subsection (1)—

• (a) shall be applied towards satisfaction of the order, and

• (b) shall, subject to any provision to the contrary in the relevant international instrument, be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance unless, on request by or on behalf of the designated state concerned, the Court provides otherwise.

43. Winding up of company holding realisable property.

43.— (1) Where realisable property is held by a company and an order for its winding up has been made or a resolution has been passed by it for a voluntary winding up, the functions of the liquidator (or any provisional liquidator) are not exercisable in relation to—

• (a) property for the time being subject to a freezing co-operation order made before the relevant time, and

• (b) any proceeds of property realised by virtue of section 36 for the time being in the hands of a receiver.

• (2) Where such an order has been made or such a resolution passed, the powers conferred on the High Court under section 36 or on a receiver appointed under that section shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable—

• (a) so as to inhibit him or her from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors, or

• (b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

• (3) In this section—

“company” means any company which may be wound up under the Companies Acts 1963 to 2006;

“relevant time” means—

• (a) where no order for the winding up of the company has been made, the time of the passing of the resolution for its voluntary winding up,

• (b) where such an order has been made and, before presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

• (c) in any other case where such an order has been made, the time of the making of the order.

44. Duration of freezing co-operation order.

44.— A freezing co-operation order remains in force—

• (a) where the external freezing order is for the purpose of securing evidence, until the evidence is transferred to the issuing state or a request for such a transfer is refused,

• F34[(b) where the order is for the purpose of subsequent confiscation of property—

• (i) in the case of confiscation on foot of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, until the execution of that external confiscation order or until the Central Authority has informed the competent authority in the designated state concerned of one of the matters under paragraphs (c), (d), (e), (f) and (g) of section 51G, and

• (ii) in any other case, until a confiscation co-operation order is made or the request for such an order is refused and the refusal is upheld on any appeal against it, or]

• (c) until the freezing co-operation order is discharged in accordance with section 45.

45. Variation or discharge of freezing co-operation order.

45.— (1) Subject to the provisions of this section, the High Court, on application by F35[the Central Authority or] any person affected by a freezing co-operation order—

• (a) may vary or discharge it, and

• (b) shall discharge it—

• (i) if proceedings in respect of the offence are not instituted, or an application for the transfer of the evidence or for a confiscation order is not made, within such time as the court considers reasonable, or

• (ii) if the court considers that for any other reason the continuance in force of the order would not be in the interests of justice.

• (2) Notice of an application under this section and of the grounds for it shall be given by the applicant, in such manner as may be prescribed by rules of court or as the Court may direct, to the Central Authority for transmission to the issuing authority.

• (3) The making of an application under this section does not have suspensive effect.

• (4) The substantive grounds for making the external freezing order may be reviewed only by a judicial authority in the issuing state concerned.

• (5) The registrar of the Court shall inform the issuing judicial authority of the outcome of the application.

46. Refusal to make freezing co-operation order.

46.— (1) Without prejudice to section 3, the High Court may refuse to make a freezing co-operation order only if—

• (a) the offence to which the external freezing order relates is not an offence to which the relevant international instrument relates,

• (b) where the external freezing order was made in a member state, the certificate is not produced, is incomplete or manifestly does not correspond to the external freezing order,

• (c) there is an immunity or privilege under the law of the State which makes it impossible to make a freezing co-operation order,

• (d) it is immediately clear from the information provided in a certificate that compliance with a request for the transfer of evidence or confiscation of property in relation to the offence in respect of which the external freezing order has been made would infringe the ne bis in idem principle, or

• (e) in the case of an external freezing order from a designated state (other than F36[a member state or the United Kingdom]), there is not a reasonable basis for believing—

• (i) that there are sufficient grounds for making the order, or

• (ii) that the property will be subject to an external confiscation order.

• (2) In a case referred to in subsection (1)(b), the High Court may—

• (a) specify a deadline for presentation of a certificate or for its completion or correction,

• (b) accept an equivalent document, or

• (c) if the Court considers that the information provided is sufficient, dispense with the requirement to produce the certificate.

• (3) Where—

• (a) the High Court refuses to make a freezing co-operation order, or

• (b) notwithstanding consultation with the issuing judicial authority concerned, it is not possible to make such an order because—

• (i) the evidence or property has disappeared, has been destroyed or cannot be found in the location indicated in the certificate, or

• (ii) its location has not been indicated in a sufficiently precise manner,

the Court shall direct the Central Authority to inform the judicial authority accordingly by any means capable of producing a written record.

47. Postponement of freezing co-operation order.

47.— (1) The High Court may postpone the making of a freezing co-operation order—

• (a) where making it might prejudice an ongoing criminal investigation in the State, until such time as the Court deems reasonable,

• (b) where the property or evidence concerned is already subject to a freezing order in criminal proceedings in the State, until that order is discharged, or

• (c) subject to subsection (2), where, in the case of an external freezing order freezing property with a view to its subsequent confiscation, the property is already subject to an order made in other proceedings in the State, until that order is discharged.

• (2) Subsection (1)(c) applies only if the order made in such other proceedings would have priority over a subsequent freezing order in criminal proceedings.

• (3) Where the ground for postponement ceases to exist, the Court shall forthwith make a freezing co-operation order.

• (4) The Court shall direct the Central Authority to inform the issuing judicial authority by any means capable of producing a written record of—

• (a) any postponement under this section of the making of a freezing co-operation order, the reasons for the postponement and its expected duration,

• (b) the making of a freezing co-operation order under subsection (3), and

• (c) any other measure of restraint to which the property concerned may be subject.

48. Subsequent treatment of frozen property.

48.— (1) A request to transfer evidence subject to a freezing co-operation order to the issuing state shall be treated as a request for assistance in obtaining evidential material under section 75.

• (2) A request to make a confiscation co-operation order in relation to property subject to such an order shall be dealt with in accordance with F37[this Part].

• (3) Notwithstanding subsection (1), where—

• (a) a request from a member state concerns an offence to which Article 3(2) of the F37[2003 Framework Decision] applies, and

• (b) the offence is punishable in the issuing state by a term of imprisonment of not less than 3 years,

the High Court may not refuse a request for evidence to be transferred to that state on the ground that the conduct constituting the offence is not an offence under the law of the State.

Chapter 3 Confiscation of Property

49. Request for confiscation of property in designated state.

49.— (1) If a confiscation order relates to property in a designated state, the registrar or clerk of the court concerned shall, on request and subject to any conditions that may be specified by rules of court, give to the Director of Public Prosecutions—

• (a) a duly authenticated copy of the order, and

• (b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

• (2) If such a confiscation order has not been satisfied, the Director of Public Prosecutions may send to the Central Authority, for transmission to the competent authority in the designated state concerned—

• (a) the documents mentioned in subsection (1),

• (b) a document signed by or on behalf of the Director stating—

• (i) that the order is in force and has not been satisfied, and

• (ii) that the defendant appeared or was represented at the proceedings in which the order was made or, if not, the date on which the court proceedings began and the date on which the defendant received notice of them,

• (c) a brief description of the conduct which resulted in the making of the order, and

• (d) a request that the property concerned be realised and the proceeds applied in accordance with the law of that state.

• F38[(2A) Where the Director of Public Prosecutions sends a request to the Central Authority under subsection (2) the Director of Public Prosecutions shall inform the Central Authority—

• (a) if there is a risk that the amount that may be realised in pursuance of such a request is greater than the amount ordered to be paid under the confiscation order, stating that there is that risk and requesting that the amount to be realised not exceed the amount specified in the request,

• (b) if all or part of the confiscation order has been executed in the State or in another designated state, stating the amount of the proceeds of realisation and requesting that the amount to be realised in the designated state concerned not exceed the difference between the amount specified in the confiscation order and those proceeds of realisation,

• (c) if the defendant has made any voluntary payment in respect of the confiscation order after it was transmitted, stating the amount of that voluntary payment and requesting that the amount to be realised in the designated state concerned not exceed the difference between the amount specified in the confiscation order and the amount paid voluntarily, or

• (d) if the confiscation order ceases to be enforceable, stating that fact.]

• (3) If—

• (a) property is realised in pursuance of such a request, and

• (b) the amount realised is less than, or equal to, the amount ordered to be paid under the confiscation order,

the amount so ordered is deemed to be reduced by an amount equal to the proceeds of realisation or, as the case may be, the confiscation order is deemed to be discharged.

• (4) In any proceedings a certificate purporting to be issued by a competent authority in the designated state and stating—

• (a) that property has been realised pursuant to the request,

• (b) the date of realisation, and

• (c) the proceeds of realisation,

is admissible, without further proof, as evidence of those matters.

• F38[(4A) Transmission of documents referred to in subsections (2) and (2A) shall be by any means capable of producing a written record under conditions which allow the competent authority or competent authorities concerned to establish the documents’ authenticity.]

• (5) If the proceeds of realisation are stated in the certificate otherwise than in euro, they are to be taken as their euro equivalent calculated at the baseline rate of exchange prevailing on the date of realisation.

50. Transmission to State of external confiscation order.

50.— (1) An external confiscation order may be transmitted by or on behalf of the court that made it to the Central Authority with a request for its enforcement.

• (2) The external confiscation order shall be accompanied by—

• (a) a duly certified copy of the order,

• (b) a statement by or on behalf of the court that made the order—

• (i) that it is in force and not subject to appeal, and

• (ii) that, if the person against whom it was made did not appear in the proceedings concerned, notice thereof was received by the person in good time to defend the proceedings,

• (c) a brief description of the conduct constituting the offence which resulted in the making of the order, and

• (d) any required translations,

and shall include any further information required by the relevant international instrument.

51. Confiscation co-operation order.

F39[51. (1) The Central Authority, on receipt of an external confiscation order and accompanying documents transmitted by or on behalf of a court in a designated state other than a member state, may cause an application to be made to the High Court for an order (a "confiscation co-operation order") for the confiscation of realisable property to which the external confiscation order relates and that is in the State.

• (2) The application shall be accompanied by the request, the accompanying documents and any other related documents or by copies thereof.

• (3) On the application the Court may, subject to section 51B, 51C or 51D, as may be appropriate, make a confiscation co-operation order.]

51A. F40[External confiscation orders (member states)

51A.— (1) Where the Central Authority receives an external confiscation order that has been transmitted by or on behalf of a court in a designated state that is a member state, it shall, subject to subsection (2), transmit the external confiscation order to the Director of Public Prosecutions for execution under this Act.

• (2) Where the Central Authority considers that there are grounds for refusal, postponement, variation or termination of the execution of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, in accordance with the relevant international instrument, the Central Authority shall cause an application to be made to the High Court for an order under section 51B, 51C, 51E or 51F, as the case may be.]

51B. F41[Refusal to confiscate

51B.— (1) On application made in accordance with section 51(1) or 51A(2) and without prejudice to section 3, the High Court shall refuse to make a confiscation co-operation order in respect of an external confiscation order, or shall make an order refusing the execution of an external confiscation order made by or on behalf of a court in a designated state that is a member state, as the case may be, if—

• (a) subject to subsection (4), the conduct which resulted in the making of the external confiscation order is not an offence to which the relevant international instrument relates,

• (b) F42[where the designated state concerned is a state other than the United Kingdom, there is immunity or privilege] under the law of the State which makes it impossible to make the confiscation co-operation order or execute the external confiscation order, as the case may be,

• (c) it is immediately clear from the information provided in a certificate that compliance with the external confiscation order in relation to the offence that resulted in the making of that order would infringe the ne bis in idem principle,

• (d) the defendant did not appear in person at the trial resulting in the external confiscation order, unless the certificate from the court in the designated state concerned states that—

• (i) he or she was notified of the time when, and place at which, the proceedings were to take place, or he or she was otherwise aware of the scheduled proceedings, and he or she was informed that an external confiscation order could be made even if he or she did not appear,

• (ii) he or she was aware of the proceedings concerned and was represented at those proceedings by a lawyer whom he or she has appointed,

• (iii) after having been served with the external confiscation order and expressly informed of his or her right to a retrial or an appeal in which he or she would have been able to participate and which could have led to the original decision being reversed, he or she—

• (I) expressly stated that he or she did not contest the external confiscation order, or

• (II) did not request the retrial or appeal within the time limit for exercising that right,

or

• (iv) in a case where he or she was not personally served with the external confiscation order, an undertaking has been given by the designated state concerned that he or she will be personally served with the external confiscation order without delay and will be expressly informed of his or her right to a retrial or an appeal in which he or she will be able to participate and which could lead to a reversal of the order, and of the time limit for exercising that right,

• (e) F42[where the designated state concerned is a state other than the United Kingdom, the criminal conduct concerned] was either committed outside the territory of the designated state concerned or committed wholly or partly in the State, or

• (f) the enforcement of the confiscation co-operation order, or the execution of the external confiscation order, as the case may be, is statute barred.

• (2) Where the copy of the external confiscation order is not accompanied by the documents required under section 50(2), or is incomplete or does not correspond to the external confiscation order, the High Court—

• (a) may permit the certified copy of the order, or a completed or corrected certified copy of the order, to be produced by or on behalf of the court concerned in accordance with a specified deadline, or

• (b) shall refuse to make a confiscation co-operation order or, as the case may be, to execute the external confiscation order, unless it is satisfied, by the production of an equivalent document or otherwise, that the information provided by or on behalf of the court concerned is sufficient.

• (3) F42[Where the designated state concerned is a state other than the United Kingdom, the High Court] shall not make a confiscation co-operation order or, as the case may be, shall make an order refusing the execution of the external confiscation order if it is satisfied that the rights of any person holding an interest in the property the subject of the external confiscation order concerned make it impossible to execute that order.

• (4) Where an external confiscation order is transmitted by or on behalf of a court in a designated state that is a member state, and the offence that resulted in the making of the order is an offence referred to in Article 6(1) of the 2006 Framework Decision punishable in that designated state by a maximum term of imprisonment of not less than 3 years, the High Court shall not make an order refusing the execution of the external confiscation order solely on the ground that the conduct constituting the offence that resulted in the making of that external confiscation order does not constitute an offence under the law of the State.]

51C. F43[Postponement of confiscation

51C.— (1) Where an application is made in accordance with section 51(1) or 51A(2), the High Court may order the postponement of confiscation under this Chapter until such time as the Court considers reasonable, where to proceed with the confiscation, on foot of, as the case may be, a confiscation co-operation order or an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, might prejudice an ongoing criminal investigation in the State.

• (2) The High Court may order the postponement of confiscation under this Chapter where the realisable property concerned is already subject to confiscation proceedings in the State.

• (3) An order of the High Court postponing confiscation shall include an order that such measures as may be necessary to provide for the availability of the realisable property for the execution of the external confiscation order concerned be taken during the postponement period.

• (4) When the grounds for the postponement cease to exist, the High Court shall, without delay—

• (a) where the designated state is a member state, make an order for the execution of the external confiscation order concerned, or

• (b) in any other case, make a confiscation co-operation order in respect of the external confiscation order concerned.

• (5) For the purposes of this section the "postponement of confiscation" means—

• (a) the postponement of the execution of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, and

• (b) in any other case, the postponement of the making of a confiscation co-operation order in respect of an external confiscation order.]

51D. F44[Variation or discharge of confiscation co-operation orders

51D.— (1) Where a confiscation co-operation order has been made, the High Court, on application by the Central Authority or any person affected by the confiscation co-operation order—

• (a) may vary or discharge it,

• (b) shall vary it to the extent of any amount in respect of which there has already been confiscation in any state, if the High Court is satisfied that there has been such confiscation where—

• (i) the person concerned has provided evidence that there has been such confiscation, in part, in that other state, and

• (ii) the High Court has consulted with the competent authority in the designated state where the external confiscation order concerned was made, and that competent authority has confirmed that there has been confiscation in that other state and the extent of that confiscation,

and

• (c) shall discharge it if the High Court is satisfied that there is no need for the confiscation co-operation order where—

• (i) the person concerned has provided evidence that there has been confiscation in any state, the High Court has consulted with the competent authority in the designated state where the external confiscation order was made and that competent authority has confirmed that that external confiscation order has been satisfied by confiscation in that other state, or

• (ii) it has been informed by the competent authority in the designated state where the external confiscation order concerned was made that that order has ceased to be enforceable.

• (2) Notice of an application under this section and of the grounds for it shall be given by the applicant, in such manner as may be prescribed by rules of court or as the High Court may direct, to the Central Authority for transmission to the designated state concerned.

• (3) The making of an application under subsection (1) shall not suspend the execution of the confiscation co-operation order concerned.]

• F45[(4) Where the external confiscation order was made in the United Kingdom, the substantive grounds for making the external confiscation order may be reviewed only by a judicial authority in that state.]

51E. Variation or discharge of external confiscation orders from member states

F46[51E.— (1) A person who claims to be affected by an external confiscation order that has been transmitted by or on behalf of a court in a designated state that is a member state to the Central Authority and then transmitted to the Director of Public Prosecutions under section 51A for execution in the State may make an application to the High Court to vary or discharge that external confiscation order.

• (2) The High Court shall consider an application made under subsection (1) and may vary or discharge the external confiscation order concerned only if it is informed by the competent authority in the designated state where the external confiscation order concerned was made that it has reviewed the substantive grounds for the order and has concluded that the external confiscation order concerned should be varied or discharged.

• (3) Notice of an application under this section and of the grounds for it shall be given by the applicant, in such manner as may be prescribed by rules of court or as the High Court may direct, to the Central Authority for transmission to the designated state concerned.

• (4) The making of an application under subsection (1) shall not suspend the execution of the external confiscation order concerned.]

51F. F47[Termination of external confiscation orders from member states

51F.— Where an external confiscation order has been transmitted by or on behalf of a court in a designated state that is a member state to the Central Authority and the Central Authority has transmitted it to the Director of Public Prosecutions under section 51A for execution in the State, the execution of that external confiscation order shall be terminated by order of the High Court only if a request to terminate it has been received from the competent authority of the designated state concerned.]

51G. F48[Central Authority to inform competent authority

51G.— The Central Authority shall inform, by any means capable of producing a written record, the competent authority in the designated state that transmitted an external confiscation order of the following:

• (a) where the external confiscation order was transmitted by or on behalf of a court in a designated state that is a member state, when the Central Authority receives the external confiscation order;

• (b) where the external confiscation order was transmitted by or on behalf of a court in a designated state that is a member state, when the execution of the external confiscation order has been completed;

• (c) where it is impossible to execute the external confiscation order under section 51A because, after consultation with that competent authority, the realisable property the subject of that order has been destroyed or cannot be found in the location indicated in the documents accompanying that order or that location has not been indicated in a sufficiently precise manner;

• (d) where the High Court refuses under section 51B to make a confiscation co-operation order, or makes an order refusing the execution of an external confiscation order made by or on behalf of a designated state that is a member state because, after consultation with that competent authority, the realisable property the subject of that external confiscation order has been destroyed or cannot be found in the location indicated in the documents accompanying the external confiscation order or that location has not been indicated in a sufficiently precise manner;

• (e) where there has been postponement of confiscation ordered in respect of that external confiscation order under section 51C, or the grounds for such a postponement have ceased and an order has therefore been made under subsection (4) of that section;

• (f) where there has been variation or discharge in respect of that external confiscation order under section 51D or 51E; or

• (g) where the execution of the external confiscation order has been terminated under section 51F.]

52. Enforcement, etc., of confiscation co-operation orders.

52.— (1) Where the High Court makes a confiscation co-operation order for the payment of a sum of money, the order may, without prejudice to section 38 enabling property of the defendant in the hands of a receiver appointed under this Act to be applied in satisfaction of the order, be enforced by the Director of Public Prosecutions at any time after it is made (or, if the order provides for payment at a later time, then at any time after the later time) as if it were a judgment of the Court for the payment to the State of the sum specified in the order or of any lesser sum remaining due under it.

• (2) Nothing in subsection (1) enables a person to be imprisoned.

• (3) Subject to subsections (4) and (5), if, at any time after payment of a sum due under a confiscation co-operation order has become enforceable in the manner provided for by subsection (1), it is reported to the Court by the Director of Public Prosecutions that any such sum or any part of it remains unpaid, the Court may, without prejudice to the validity of anything previously done under the order or to the power to enforce the order subsequently in accordance with subsection (1), order that the defendant be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite to the amount remaining unpaid under the confiscation co-operation order as set out in the first column thereof.

• (4) An order under subsection (3) shall not be made unless—

• (a) the defendant has been given a reasonable opportunity to make any representations to the Court, and

• (b) the Court has taken into account those representations and any representations made by the Director of Public Prosecutions in reply.

• (5) A defendant shall not be imprisoned for non-compliance F49[with a confiscation co-operation order in respect of an external confiscation order transmitted by or on behalf of a court in a designated state other than the United Kingdom] if the request for the enforcement of the external confiscation order so specifies and the relevant international instrument so provides.

• F50[(5A) A defendant shall not be imprisoned for non-compliance with a confiscation co-operation order in respect of an external confiscation order transmitted by or on behalf of a court in the United Kingdom unless the competent authority in United Kingdom consents to such imprisonment.]

• (6) Any term of imprisonment imposed under subsection (3) of this section shall be reduced in proportion to any sum or sums paid or recovered from time to time under the confiscation co-operation order.

TABLE

Amount outstanding under confiscation order	Period of imprisonment
Not exceeding €650 Exceeding €650 but not exceeding €1,300 Exceeding €1,300 but not exceeding €3,250 Exceeding €3,250 but not exceeding €6,500 Exceeding €6,500 but not exceeding €13,000 Exceeding €13,000 but not exceeding €26,000 Exceeding €26,000 but not exceeding €65,000 Exceeding €65,000 but not exceeding €130,000 Exceeding €130,000 but not exceeding €325,000 Exceeding €325,000 but not exceeding €1,300,000 Exceeding €1,300,000	45 days 3 months 4 months 6 months 9 months 12 months 18 months 2 years 3 years 5 years 10 years

53. Realisation of property subject to confiscation co-operation order.

53.— (1) Where—

• (a) F51[an external confiscation order or] a confiscation co-operation order for the payment of a sum of money has not been satisfied, or

• (b) such an order is for the confiscation of property other than such a sum,

the High Court may, on application by the Director of Public Prosecutions, appoint a person to be a receiver in respect of realisable property.

• (2) The Court may empower the receiver to take possession of any realisable property subject to such conditions or exceptions as may be specified by the Court.

• (3) The Court may order any person having possession or control of any realisable property to give possession of it to the receiver.

• (4) The Court may empower the receiver to realise any realisable property in such manner as the Court may direct.

• (5) The Court may order any person holding an interest in realisable property to make such payment to the receiver as the Court may direct in respect of any beneficial interest held by the defendant or the recipient of any gift caught by this Act and the Court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

• (6) The Court shall not, in respect of any property, exercise the powers conferred by this section unless a reasonable opportunity has been given to persons holding any interest in the property to make representations to it.

• F52[(7) Where property recovered by the execution of an external confiscation order or confiscation co-operation order is not a sum of money, the receiver may—

• (a) cause the property recovered to be transferred to the state concerned, or

• (b) cause the property recovered to be sold and, subject to F53[subsections (8) and (9)], the proceeds transferred to the state concerned.

• (8) Where property recovered by the execution of an external confiscation order transmitted by or on behalf of a court in a designated state F54[that is a member state or the United Kingdom] is a sum of money or the proceeds of a sale under subsection (7)(b) —

• (a) if that sum is less than €10,000, it shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct, and

• (b) if that sum is €10,000 or more, 50 per cent of the sum shall be transferred to the designated state concerned and the remaining 50 per cent shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.]

• F55[(9) Where property recovered by the execution of a confiscation co-operation order transmitted by or on behalf of a court in a designated state, other than a member state or the United Kingdom, is a sum of money or the proceeds of a sale under subsection (7)(b), the Court, on application by the Central Authority and in accordance with the relevant international instrument, may—

• (a) order the money or the proceeds of sale to be transferred to the designated state, or

• (b) order part of the money or the proceeds of sale to be transferred to the designated state and the remaining balance shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.]

54. Interest on sums unpaid under confiscation co-operation orders.

54.— (1) Subject to subsection (2), if any sum required to be paid by a person under a confiscation co-operation order is not paid when it is required to be paid (whether on the making of the order or at a later time specified by the Court), the person shall be liable to pay interest on the sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from the person under the order.

• (2) The amount of interest payable under subsection (1) shall be disregarded when calculating the term of imprisonment to be imposed under section 52.

• (3) The rate of interest payable under subsection (1) is that for the time being applying in relation to a High Court civil judgment debt.

55. Payments under confiscation co-operation orders to be expressed in euro.

55.— (1) Where a sum of money payable or remaining to be paid under an external confiscation order is expressed in a currency other than the euro, the confiscation co-operation order shall require payment of an equivalent euro amount, calculated at the baseline rate of exchange prevailing between that currency and the euro on the date of the making of the confiscation co-operation order.

• (2) For the purposes of subsection (1), a certificate—

• (a) purporting to be signed by an officer of a financial institution (within the meaning of Part 2) in the State, and

• (b) stating the baseline rate of exchange prevailing on a specified date between a specified currency and the euro,

is admissible, without further proof, as evidence of the exchange rate so prevailing on that date.

56. Exercise of powers under this Chapter by High Court or receiver.

56.— (1) The powers of the High Court under section 53 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to recovering property which is liable to be recovered under the confiscation co-operation order concerned.

• (2) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of a gift, to retain or recover the value of any property held by the person.

• (3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

• (4) In exercising the powers no account shall be taken of any obligations of the defendant or the recipient of any gift that conflict with the obligation to satisfy the confiscation co-operation order.

• F56[(5) Where realisable property is the subject of an external confiscation order and a request under section 75, whether or not transmitted from the same designated state, the request under section 75 shall have priority over the external confiscation order.]

57. Application to confiscation co-operation orders of certain provisions relating to freezing co-operation orders.

57.— Sections 39, 40, 41, 42 and 43 apply in relation to confiscation co-operation orders as they apply in relation to freezing co-operation orders, and accordingly—

• (a) references to section 36 in sections 39, 40 and 43 shall be construed as references to section 53, and

• (b) references in sections 40, 41, 42 and 43 to a freezing co-operation order shall be construed as references to F57[an external confiscation order or] a confiscation co-operation order.

57A. F58[Application of provisions on enforcement and realisation to execution of external confiscation order from member states

57A.— Sections 52, 54, 55, 56 and 57 apply in relation to external confiscation orders transmitted by or on behalf of courts in designated states that are member states (except where the execution of such orders is subject to refusal, postponement, variation or discharge, or termination under sections 51B, 51C, 51E and 51F respectively) as they apply in relation to confiscation co-operation orders.]

Chapter 4 Forfeiture of Property

58. Transmission of external forfeiture order to designated state for enforcement.

58.— (1) If an order of a court relates to the forfeiture of property in a designated state, the registrar or clerk of the court concerned shall, on request and subject to any conditions that may be specified by rules of court, give to the Director of Public Prosecutions—

• (a) a duly authenticated copy of the order, and

• (b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

• (2) The Director of Public Prosecutions may send to the Central Authority, for transmission to the appropriate authority in the designated state concerned—

• (a) the documents mentioned in subsection (1),

• (b) a document signed by or on behalf of the Director stating—

• (i) that the order is in force and has not been satisfied, and