Legalize / Ireland / Act

Criminal Justice (Miscellaneous Provisions) Act 2009

Type Act

Publication 2009-07-21

State In force

Source Irish Statute Book

Reform history JSON API

PART 1 Preliminary and General

1.. Short title and commencement.

1.— (1) This Act may be cited as the Criminal Justice (Miscellaneous Provisions) Act 2009.

(2) The Firearms Acts 1925 to 2007 and Part 4 may be cited together as the Firearms Acts 1925 to 2009 and shall be construed together as one.

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

2.. Interpretation.

2.— In this Act—

“Act of 1857” means the Summary Jurisdiction Act 1857;

“Act of 1964” means the Firearms Act 1964;

“Act of 1990” means the Firearms and Offensive Weapons Act 1990;

“Act of 2000” means the Firearms (Firearm Certificates for Non- Residents) Act 2000;

“Act of 2001” means the Criminal Justice (Theft and Fraud Offences) Act 2001;

“Act of 2003” means the European Arrest Warrant Act 2003;

“Act of 2006” means the Criminal Justice Act 2006;

“Firearms Acts” means the Firearms Acts 1925 to 2007;

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

“Principal Act” means the Firearms Act 1925.

3.. Expenses.

3.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2 Amendments to European Arrest Warrant Act 2003

4.. Amendments to section 2 of Act of 2003.

4.— Section 2 of the Act of 2003 is hereby amended in subsection (1)—

(a) by the insertion of the following definitions after the definition of “Act of 2001”:

“‘alert’ means an alert entered in the SIS for the arrest and surrender, on foot of a European arrest warrant, of the person named therein;”,

(b) by the insertion of the following definition after the definition of “Central Authority in the State”:

“‘Council Decision’ means Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System;”,

(d) by the insertion of the following definitions after the definition of ‘Minister’:

“‘Schengen Convention’ means the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders done at Schengen on 19 June 1990 and includes any amendment to or modification of that Convention whether before or after the passing of this Act but does not include the Council Decision;

‘SIS’ means the system referred to in Title IV of the Schengen Convention or, as appropriate, the system established under Chapter 1 of the Council Decision;”.

5.. Amendments to section 4 of Act of 2003.

5.— Section 4 of the Act of 2003 is hereby amended—

(a) in subsection (1) by the substitution for “(1) Subject to subsections (2) and (3), this” of “This”, and

(b) by the deletion of subsections (2) and (3).

6.. Amendments to section 10 of Act of 2003.

6.— Section 10 (as inserted by section 71 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 is hereby amended—

(a) by the deletion of the word “duly”,

(b) in paragraph (c) by the insertion after “offence” of “in that state”,

(i) by the insertion after “imposed” of “in that state”, and

(ii) by the deletion of the following words:

“and who fled from the issuing state before he or she—

(i) commenced serving that sentence, or

(ii) completed serving that sentence”.

7.. Amendments to section 11 of Act of 2003.

7.— Section 11 (as amended by section 72 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 is hereby amended—

(a) in subsection (1A) by the substitution in paragraph (e) for “the offence” of “one of the offences to which the European arrest warrant relates”,

(b) in subsection (2) by the substitution of “(1A)” for “(1)” in the second place that it occurs, and

“(2A) If any of the information to which subsection (1A) (inserted by section 72(a) of the Criminal Justice (Terrorist Offences) Act 2005) refers is not specified in the European arrest warrant, it may be specified in a separate document.”.

8.. Amendments to section 12 of Act of 2003.

8.— Section 12 (as amended by section 73 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 is hereby amended—

(a) in subsection (3)—

(i) by the insertion after “this Act” of “or any other document to be transmitted for the purposes of this Act”, and

(ii) by the substitution for paragraph (b) of the following paragraph:

“(b) any means capable of producing a written record under conditions allowing the Central Authority in the State to establish its authenticity.”,

(b) by the deletion of subsections (4), (5) and (6),

“(7) For the purposes of this Act, a document shall be deemed to be a true copy of an original document if it has been certified as a true copy of the original document by—

(a) the issuing judicial authority, or

(b) an officer of the central authority of the issuing state.”,

and

(d) in subsection (9) by the deletion of the words “facsimile copy or”.

9.. Amendments to section 13 of Act of 2003.

9.— Section 13 of the Act of 2003 is hereby amended—

(a) in subsection (1) by the deletion of the words “facsimile copy or”,

(b) in subsection (2) by the deletion of paragraph (b), and

10.. Amendment to section 14 of Act of 2003.

10.— Section 14 of the Act of 2003 is amended by the substitution for that section of the following:

“Arrest without warrant for surrender purposes.

14.— (1) A member of the Garda Síochána may arrest any person without a warrant that the member believes, on reasonable grounds, to be a person named in an alert.

(2) A person arrested under this section shall, upon his or her arrest, be informed, in ordinary language, of the reason for the arrest and of his or her right to—

(a) obtain or be provided with professional legal advice and representation, and

(b) where appropriate, obtain or be provided with the services of an interpreter.

(3) A person arrested under this section shall, as soon as may be after his or her arrest—

(a) be furnished with a copy of the alert, and

(b) be brought before the High Court, which court shall, if satisfied that he or she is the person named in the alert—

(i) inform the person of his or her right to—

(I) obtain or be provided with professional legal advice and representation, and

(II) where appropriate, obtain or be provided with the services of an interpreter,

and

(ii) remand the person in custody or, at its discretion, on bail for a period not exceeding 14 days (and for that purpose the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence) for production to the High Court of the European arrest warrant on foot of which the alert was entered.

(4) Where, in respect of a person remanded in custody or on bail under subsection (3), a European arrest warrant is transmitted to the Central Authority in the State pursuant to section 12—

(a) that person shall be brought before the High Court as soon as may be,

(b) the European arrest warrant shall be produced to the High Court,

(d) the High Court, if satisfied that the provisions of this Act have been complied with and that the person before it is the person in respect of whom the European arrest warrant was issued, shall—

(i) inform the person of his or her right to consent to being surrendered to the issuing state under section 15, and

(ii) if the person does not exercise his or her right to consent under paragraph (i)—

(I) remand the person in custody or on bail (and for that purpose the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence), and

(II) fix a date for the purposes of section 16 within the period of 21 days next following.

(5) Where, in respect of a person remanded in custody or on bail under subsection (3), the European arrest warrant is not produced on the date fixed by the Court for the purpose under that subsection the person shall be released from custody.”.

11.. Amendments to section 15 of Act of 2003.

11.— Section 15 (as amended by section 75 of the Criminal Justice (Terrorist Offences) Act 2005) is hereby amended—

(a) in subsection (1)(a) by the deletion of the words “facsimile or”,

(b) in subsection (2)(a) by the substitution for “facsimile or true copies” of “a true copy”,

“(3A) An appeal against an order under this section or a decision not to make such an order may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”,

(d) in subsection (5) by the insertion after “subsection (6)” of “, subsection (7)”,

(e) by the substitution for subsection (6) of the following:

“(6) Where a person—

(a) appeals an order made under this section, or

(b) makes a complaint under Article 40.4.2 of the Constitution,

he or she shall not be surrendered to the issuing state while proceedings relating to the appeal or complaint are pending.”,

(f) by the substitution for subsection (7) of the following:

“(7) Where a person (to whom an order for the time being in force under this section applies) is not surrendered to the issuing state within the relevant period specified in subsection (5) and the surrender is not prohibited by reason of subsection (6) the High Court may remand the person in custody or on bail for such further period as is necessary to effect the surrender unless it considers it would be unjust or oppressive to do so.”,

and

(g) by the substitution for subsection (9) of the following:

“(9) Where a person lodges an appeal pursuant to subsection (3A), the High Court may remand the person in custody or on bail pending the hearing of the appeal and, for that purpose, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence.”.

12.. Amendments to section 16 of Act of 2003.

12.— Section 16 (as amended by section 76 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 is hereby amended—

(a) in subsection (1)—

(i) by the deletion of the words “or has withdrawn his or her consent under section 15(9)”, and

(ii) by the deletion from paragraphs (b) and (c) of the words “facsimile or”,

(b) in subsection (2)—

(i) by the deletion of “or has withdrawn his or her consent under section 15(9)”, and

(ii) in paragraph (a) thereof by the deletion of “or facsimile”,

(d) by the substitution for subsection (6) of the following:

“(6) Where a person—

(a) appeals an order made under this section, or

(b) makes a complaint under Article 40.4.2 of the Constitution,

he or she shall not be surrendered to the issuing state while proceedings relating to the appeal or complaint are pending.”,

(e) by the substitution for subsection (7) of the following:

(f) in subsection (12) by the substitution for “on a point of law only.” of “if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”, and

(g) by the insertion of the following new subsection after subsection (12):

“(13) Where a person lodges an appeal pursuant to subsection (12), the High Court may remand the person in custody or on bail pending the hearing of the appeal and, for that purpose, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence.”.

13.. Amendments to section 18 of Act of 2003.

13.— Section 18 (as amended by section 77 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 is hereby amended—

(a) by the substitution for subsection (3) of the following subsection:

“(3) Subject to section 19, where a person to whom an order under section 15 or 16 applies—

(a) is being proceeded against for an offence in the State, or

(b) (i) has been sentenced to a term of imprisonment for an offence of which he or she was convicted in the State, and

(ii) is required to serve all or part of that term of imprisonment,

the High Court may direct the postponement of that person’s surrender to the issuing state until—

(I) in the case of a person who is being proceeded against for an offence, the date of the final determination of those proceedings (where he or she is not required to serve a term of imprisonment), or

(II) in the case of a person who is required to serve all or part of a term of imprisonment, the date on which he or she is no longer required to serve any part of that term of imprisonment.”,

and

(b) in subsection (4) by the substitution for “subsection (3)(i) or (ii)” of “subsection (3)(b)(I) or (II)”.

14.. Amendment to section 20 of Act of 2003.

14.— Section 20 of the Act of 2003 is hereby amended in subsection (3) by the insertion after “affidavit” of “, declaration, affirmation, attestation”.

15.. Amendment to section 29 of Act of 2003.

15.— Section 29 of the Act of 2003 is hereby amended by the deletion of “neither of which or not all of which, as the case may be, have been issued by the same issuing state,”.

16.. Amendments to section 33 of Act of 2003.

16.— Section 33 of the Act of 2003 is hereby amended—

(a) by the substitution for subsection (1)(a) of the following subsection:

“(1) A court may, upon an application made by or on behalf of the Director of Public Prosecutions, issue a European arrest warrant in respect of a person where it is satisfied that—

(a) a domestic warrant has been issued for the arrest of that person but has not been executed, and

(b) the person may not be in the State, and”,

(b) in subsection (1)(b)(i) by the insertion of “or detention” after “imprisonment”,

(d) by the insertion of the following subsections after subsection (1):

“(1A) Where a court issues a European arrest warrant in respect of a person under this section, such issue shall be deemed to constitute a request by the court for entry of an alert and of a copy of the European arrest warrant in respect of that person.

(1B) For the purposes of subsection (1), where a member of the Garda Síochána not below the rank of Sergeant states that he or she believes that a person may not be in the State, the statement is admissible as evidence that the person may not be in the State.”.

17.. Amendment to section 38 of Act of 2003.

17.— Section 38 of the Act of 2003 is hereby amended in subsection (1)(b) by the deletion of “or is an offence that consists of conduct specified in the paragraph,”.

18.. Amendment to section 34 of Act of 2003.

18.— The Act of 2003 is hereby amended in section 34 by the substitution for “shall” of “may”.

19.. Deletion of section 40 of Act of 2003.

19.— The Act of 2003 is hereby amended by the deletion of section 40.

20.. New sections 45 to 45C of Act of 2003.

20.— The Act of 2003 is hereby amended—

(a) by the substitution for section 45 of the following section:

“Persons convicted in absentia.

45.— A person shall not be surrendered under this Act if—

(a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant, and

(b) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence, or

(ii) he or she was not permitted to attend the trial in respect of the offence concerned,

unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered—

(I) be retried for that offence or be given the opportunity of a retrial in respect of that offence,

(II) be notified of the time when, and place at which any retrial in respect of the offence concerned will take place, and

(III) be permitted to be present when any such retrial takes place.”,

and

(b) by the insertion of the following new sections after section 45:

“Identification procedures.

This document does not substitute the official text published in the Irish Statute Book. We accept no responsibility for any inaccuracies arising from the transcription of the original into this format.