Criminal Procedure Act 2010

PART 1 Preliminary and General

1.. Short title and commencement.

1.— (1) This Act may be cited as the Criminal Procedure Act 2010.

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

2.. Interpretation.

2.— (1) In this Act unless the context otherwise requires—

“Act of 1962” means the Criminal Justice (Legal Aid) Act 1962;

“Act of 1967” means the Criminal Procedure Act 1967;

“Act of 1993” means the Criminal Justice Act 1993;

“broadcast” has the meaning it has in section 2 of the Broadcasting Act 2009;

“children detention school” has the meaning it has in section 3(1) of the Children Act 2001;

“Director” means the Director of Public Prosecutions;

F1["legal aid (appeal) certificate" has the meaning it has in the Act of 1962;]

“legal aid (Supreme Court) certificate” has the meaning it has in the Act of 1962;

“legal aid (trial on indictment) certificate” has the meaning it has in the Act of 1962;

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

“prison” has the meaning it has in section 2 of the Prisons Act 2007;

“publication” means publication, other than by way of broadcast, to the public or a portion of the public.

(2) In this Act, unless the context otherwise requires, references to—

(a) a jury shall, in relation to proceedings conducted before a court sitting without a jury, be construed as references to that court, and

(b) a person being sent forward for trial include, where appropriate, references to such a person being sent or being sent forward for trial to, or charged before, a Special Criminal Court.

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 Impact of Crime on Victim

4.. Amendment of section 5 of Act of 1993.

4.— The Act of 1993 is amended by the substitution of the following section for section 5:

“Effect of certain offences on persons in respect of whom offence committed.

5.— (1) This section applies to—

(a) a sexual offence within the meaning of the Criminal Evidence Act 1992,

(b) an offence involving violence or the threat of violence to a person,

(c) an offence under the Non-Fatal Offences Against the Person Act 1997, and

(d) an offence consisting of attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a), (b) or (c).

(2) (a) When imposing sentence on a person for an offence to which this section applies, a court shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long-term or otherwise) of the offence on the person in respect of whom the offence was committed.

(b) For the purposes of paragraph (a), a ‘person in respect of whom the offence was committed’ includes, where, as a result of the offence, that person has died, is ill or is otherwise incapacitated, a family member of that person.

(3) (a) When imposing sentence on a person for an offence to which this section applies, a court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person.

(b) For the purpose of paragraph (a), where the person in respect of whom the offence was committed—

(i) is a child under the age of 14 years, the child, or his or her parent or guardian, may give evidence as to the effect of the offence concerned on that child,

(ii) is—

(I) a person with a mental disorder (not resulting from the offence concerned), the person or a family member,

(II) a person with a mental disorder (not resulting from the offence concerned), who is a child, the person or his or her parent or guardian,

may give evidence as to the effect of the offence concerned on that person,

(iii) is a person who is ill or is otherwise incapacitated as a result of the offence, a family member of the person may give evidence as to the effect of the offence concerned on that person and on his or her family members,

(iv) has died as a result of the offence, a family member of the person may give evidence as to the effect of the offence concerned—

(I) on the person between the commission of the offence and his or her death (where relevant), and

(II) on the family members of the person who has died.

(c) A person who has been convicted of an offence to which this section applies may not give evidence pursuant to paragraph (b) in respect of that offence.

(d) Where more than one family member seeks to avail of paragraph (b), the court may direct the family members to nominate one or more family members for the purpose of that paragraph.

(e) Where the court directs the family members to nominate one or more family members pursuant to paragraph (d) and the family members are unable to reach agreement, the court may, having regard to the degree of relationship between the family members and the person in respect of whom the offence was committed, nominate one or more family members as it considers appropriate.

(4) Where no evidence is given pursuant to subsection (3), the court shall not draw an inference that the offence had little or no effect (whether long-term or otherwise) on the person in respect of whom the offence was committed or, where appropriate, on his or her family members.

(5) (a) The court may, in the interests of justice, order that information relating to the evidence given under subsection (3) or a part of it shall not be published or broadcast.

(b) If any matter is published or broadcast in contravention of paragraph (a), the following persons, namely—

(i) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,

(ii) in the case of any other publication, the person who publishes it, and

(iii) in the case of a broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper,

shall be guilty of an offence.

(c) A person guilty of an offence under paragraph (b) shall be liable—

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

(ii) on conviction on indictment, to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 3 years or to both.

(d) Where an offence under paragraph (b) is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate or any other person who was acting or purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(e) Where the affairs of a body corporate are managed by its members, paragraph (d) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(6) In this section and in sections 5A and 5B, unless the context otherwise requires—

‘broadcast’ has the meaning it has in section 2 of the Broadcasting Act 2009;

‘child’ means a person under the age of 18;

‘family member’ means—

(a) a spouse or partner of the person,

(b) a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person,

(c) a person who is acting in loco parentis to the person,

(d) a dependant of the person, or

(e) any other person whom the court considers to have had a close connection with the person;

‘guardian’, in relation to a child, has the meaning it has in the Children Act 2001;

‘mental disorder’ includes a mental illness, mental disability, dementia or any disease of the mind;

‘publish’ means publish, other than by way of broadcast, to the public or a portion of the public.”.

5.. Evidence through television link.

5.— The Act of 1993 is amended by the insertion of the following section after section 5:

“5A.— (1) (a) A child or a person with a mental disorder in respect of whom an offence to which section 5 applies was committed, may give evidence pursuant to section 5(3), whether from within or outside the State, through a live television link unless the court sees good reason to the contrary.

(b) Any other person in respect of whom an offence to which section 5 applies was committed may, with the leave of the court, give evidence pursuant to section 5(3), whether from within or outside the State, through a live television link.

(2) Evidence given under subsection (1) shall be videorecorded.

(3) While evidence is being given pursuant to subsection (1) (except through an intermediary pursuant to section 5B(1)), neither the judge, nor the barrister or solicitor concerned in the examination of the witness, shall wear a wig or gown.”.

6.. Evidence through intermediary.

6.— The Act of 1993 is amended by the insertion of the following section after section 5A:

“5B.— (1) Where a child or a person with a mental disorder is giving, or is to give evidence through a live television link, pursuant to section 5A, the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that any questions to be put to the witness be put through an intermediary, direct that any such questions be so put.

(2) Questions put to a witness through an intermediary under this section shall be either in the words used by the questioner or so as to convey to the witness in a way which is appropriate to his or her age and mental condition, the meaning of the questions being asked.

(3) An intermediary referred to in subsection (1) shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such.”.

PART 3 Exceptions to rule against double jeopardy

Chapter 1

7.. Interpretation (Part 3).

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

“Act of 1984” means the Criminal Justice Act 1984;

“acquittal” includes a verdict of not guilty returned by a jury and a verdict of not guilty returned by a jury by direction of a court;

“application for a re-trial order” means an application under section 8 or 9;

“compelling evidence”, in relation to a person, means evidence which—

(a) is reliable,

(b) is of significant probative value, and

(c) is such that a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned;

“Court” means the Court of Criminal Appeal;

“legal aid (re-trial order) certificate” has the meaning it has in the Act of 1962;

“new and compelling evidence”, in relation to a person, means evidence—

(a) which was not adduced by the prosecution in the proceedings in respect of which the person was acquitted (nor in any appeal proceedings to which the original proceedings related), and

(b) which could not, with the exercise of due diligence, have been adduced during those proceedings, and

(c) is evidence which—

(i) is reliable,

(ii) is of significant probative value, and

(iii) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned;

F2["offence against the administration of justice" means—

(a) an offence under—

(i) the Criminal Justice (Corruption Offences) Act 2018 other thansection 18(1) thereof, or

(ii) the Prevention of Corruption Acts 1889 to 2010,

in so far as the offence concerned relates to criminal proceedings,

(b) an offence undersection 41of theCriminal Justice Act 1999,

(c) attempting to pervert the course of justice,

(d) embracery,

(e) perjury, or

(f) conspiring or inciting another person to commit any of the offences referred to inparagraphs (a)to(e)]

“place” includes—

(a) a dwelling or other building,

(b) a vehicle, whether mechanically propelled or not,

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

(d) an aircraft, whether capable of operation or not,

(e) a hovercraft;

“relevant offence” means an offence specified in the Schedule;

“re-trial order” means an order of the Court under subsection (1) or (2) of section 10.

Chapter 2

8.. Application by Director seeking re-trial order where new and compelling evidence becomes available.

8.— (1) Subject to subsection (7), this section applies where a person—

(a) is, on or after the commencement of this section, sent forward for trial in respect of a relevant offence and is, or

(b) has, before the commencement of this section, been sent forward for trial but has not yet been tried in respect of a relevant offence and is, on or after such commencement,

tried on indictment in respect of the offence, and acquitted of that offence (whether at the trial, on appeal against conviction or on appeal from such a decision on appeal).

(2) For the purposes of this section, a person who has been acquitted of a relevant offence in proceedings referred to in subsection (1)shall be deemed to also have been acquitted of any relevant offence in respect of which he or she could have been convicted in the proceedings concerned by virtue of the first-mentioned offence charged in the indictment, other than an offence for which he or she has been convicted.

(3) The Director may apply to the Court for a re-trial order where it appears to him or her—

(a) that there is new and compelling evidence against a person referred to in subsection (1)in relation to the relevant offence concerned, and

(b) that it is in the public interest to do so.

(4) Only one application for a re-trial order may be made by the Director in respect of a person in relation to a relevant offence that was the subject of the application and no further application may be made irrespective of whether the person concerned is subsequently acquitted of the offence concerned in a re-trial ordered pursuant to an application under this section.

(5) An application for a re-trial order under subsection (3) shall be on notice to the person concerned.

(6) If a person fails to appear before the Court in respect of the hearing of the application, the Court, if it is satisfied that it is, in all the circumstances, in the interests of justice to do so, may proceed to hear and determine the application in the absence of the person.

(7) This section shall not apply to a relevant offence in respect of which a person was the subject of a special verdict under section 5 of the Criminal Law (Insanity) Act 2006.

9.. Application by Director for re-trial order where previous acquittal tainted.

9.— (1) This section applies where—

(a) a person—

(i) is, on or after the commencement of this section, sent forward for trial in respect of an offence (irrespective of whether or not the offence is a relevant offence) and is, or

(ii) has, before the commencement of this section, been sent forward for trial but has not yet been tried in respect of an offence (irrespective of whether or not the offence is a relevant offence) and is, on or after such commencement,

tried on indictment in respect of the offence, and acquitted of that offence (whether at the trial, on appeal against conviction or on appeal from such a decision on appeal), and

(b) the person, or another person, has been convicted of an offence against the administration of justice relating to the proceedings which resulted in the acquittal referred to in paragraph (a).

(2) For the purposes of this section, a person who has been acquitted of an offence in proceedings referred to in subsection (1)(a), shall be deemed to also have been acquitted of any offence in respect of which he or she could have been convicted in the proceedings concerned by virtue of the first-mentioned offence charged in the indictment, other than an offence for which he or she has been convicted.

(3) The Director may apply to the Court for a re-trial order where it appears to him or her—

(a) there is compelling evidence against a person referred to in subsection (1)(a), and

(b) that it is in the public interest to do so.

(4) No application for a re-trial order in respect of a person may be made by the Director under this section where proceedings relating to an offence against the administration of justice referred to in subsection (1) (b) are pending before any court.

(5) Only one application for a re-trial order may be made by the Director in respect of a person in relation to an offence that was the subject of the application and no further application may be made irrespective of whether the person concerned is subsequently acquitted of the offence concerned in a re-trial ordered pursuant to an application under this section.

(6) An application for a re-trial order under subsection (3) shall be on notice to the person concerned.

(7) If a person fails to appear before the Court in respect of the hearing of the application, the Court, if it is satisfied that it is, in all the circumstances, in the interests of justice to do so, may proceed to hear and determine the application in the absence of the person.

(8) For the purposes of subsection (1)(b), the reference to “convicted of an offence”, in relation to a person, includes a reference to the conviction of a person after signing a plea of guilty and being sent forward for sentence under section 13(2)(b) of the Criminal Procedure Act 1967.

10.. Re-trial orders.