Criminal Justice Act 2011

PART 1 Preliminary and General

1. Short title and commencement.

1.— (1) This Act may be cited as the Criminal Justice Act 2011.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint 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.— In this Act—

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

“arrestable offence” has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997;

“document” includes information recorded in any form and any thing on or in which information is recorded and from which information can be extracted;

“enactment” means a statute or an instrument made under a power conferred by statute;

“Minister” means the Minister for Justice and Equality;

“relevant offence” shall be construed in accordance with section 3.

3. Relevant offences for purposes of this Act.

3.— (1) In this Act a relevant offence means—

(a) an arrestable offence under a provision of an enactment, or at common law, specified in Schedule 1,

(b) an arrestable offence under a provision of an enactment, or at common law, specified in an order made under subsection (2),

(c) an offence consisting of aiding, abetting, counselling or procuring the commission of an offence specified in Schedule 1 or in an order made under subsection (2), or

(d) an offence consisting of conspiring to commit, or inciting the commission of, an offence specified in Schedule 1 or in an order made under subsection (2).

(2) The Minister may by order specify as a relevant offence an arrestable offence under a provision of an enactment, or at common law, relating to any of the following areas, namely—

(a) banking, investment of funds and other financial activities,

(b) company law,

(c) money laundering and financing terrorism,

(d) theft and fraud,

(e) bribery and corruption,

(f) competition and consumer protection,

(g) criminal acts involving the use of electronic communication networks and information systems or against such networks or systems or both, or

(h) the raising and collection of taxes and duties,

if the Minister considers that it is proper to do so and he or she is of opinion that the powers conferred by this Act in relation to the investigation of relevant offences are necessary for the investigation of such an offence by reason of the nature of the offence concerned and the prolonged period of time that is generally required for the investigation of such an offence as a result of the complexity that generally arises in such an investigation due to any one or more of the following factors, namely—

(i) the number of witnesses,

(ii) the volume of documents,

(iii) the wide distribution and proliferation of documents arising from the use of electronic means of communication,

(iv) the number of transactions,

(v) the complexity of transactions, or

(vi) other factor,

that may be expected to be involved.

(3) An order under subsection (2) shall only be made after consultation by the Minister with any other Minister of the Government who, in the opinion of the Minister, having regard to the functions of that other Minister of the Government under the enactment concerned or in relation to the offence at common law concerned, ought to be consulted.

4. Orders and regulations.

4.— (1) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations.

(2) Every order under section 3(2), or regulation under this Act, shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

5. Repeals.

5.— Sections 47 and 52 of the Criminal Justice (Miscellaneous Provisions) Act 2009 are repealed.

6. Expenses.

6.— 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 Detention

7. Amendment of section 4 of Act of 1984.

7.— Section 4 of the Act of 1984 is amended—

(a) by the insertion of the following subsections after subsection (3):

“(3A) (a) Notwithstanding the generality of subsection (3), if a person is detained pursuant to this section in respect of a relevant offence, the member of the Garda Síochána in charge of the Garda Síochána station where the person is being detained may, at any time during the detention, where the member has reasonable grounds for believing that it is necessary for the purpose of permitting enquiries or investigations to be made for the further and proper investigation of the offence concerned, suspend the detention of the person.

(b) Where the member of the Garda Síochána in charge of the Garda Síochána station suspends a person’s detention under this subsection, the person shall, subject to subsection (5A), be released from custody forthwith unless his or her detention is authorised apart from this Act.

(3B) (a) A person’s detention pursuant to this section in respect of a relevant offence may be suspended under subsection (3A) on no more than 2 occasions.

(b) The total period of time for which a person’s detention may be suspended shall not in any case exceed a period of 4 months from the date on which the detention was first suspended.

(c) Subject to paragraph (d), a person whose detention is suspended under subsection (3A) shall return to such Garda Síochána station at such date and time as is specified by notice in writing given to him or her under subsection (3C) or at such other date and time or Garda Síochána station as may be notified to him or her in writing under subsection (3D).

(d) Where, in the case of a person whose detention is suspended under subsection (3A)—

(i) his or her detention is continued in respect of another offence, and

(ii) the total period of detention permissible under subsection (9) is reached during that continuation of detention,

the member of the Garda Síochána in charge of the Garda Síochána station concerned shall give the person concerned notice in writing or cause him or her to be given notice in writing of that fact, and the notice under subsection (3C) or (3D), as the case may be, shall be deemed to be withdrawn accordingly.

(3C) (a) Where a person’s detention is suspended under subsection (3A), the member of the Garda Síochána in charge of the Garda Síochána station concerned shall give the person notice in writing or cause him or her to be given notice in writing—

(i) that his or her detention is being suspended,

(ii) of the Garda Síochána station and of the date and time on which he or she is required to return to such station for the continuation of the detention concerned, and

(iii) of the consequences under sections 4A and 4B of failing to return in accordance with subsection (3B).

(b) A member of the Garda Síochána when giving the notice to any person under paragraph (a) shall explain to him or her orally the effect of the notice.

(3D) (a) Subject to subsection (3B)(b), a member of the Garda Síochána not below the rank of inspector may, in respect of a person whose detention has been suspended under subsection (3A), issue a notice in writing to the person appointing a new date and time or a different Garda Síochána station for the person’s return for the continuation of the detention concerned where that member has reasonable grounds for believing that it is necessary for the proper investigation of the offence concerned to so change the return date and time or the Garda Síochána station, as the case may be.

(b) The person in respect of whom the notice under paragraph (a) is issued shall be given such notice of the new date and time or Garda Síochána station appointed under that paragraph as shall be prescribed in regulations made by the Minister under section 4C.

(c) Only one notice under paragraph (a) may be issued to a person during each period of suspension, but nothing in this paragraph shall prejudice the exercise of the power to issue such notice in the circumstances referred to in paragraph (d).

(d) A member of the Garda Síochána not below the rank of inspector may—

(i) if a person whose detention is suspended under subsection (3A) so requests, and

(ii) the member is satisfied that there is good and sufficient reason for doing so,

issue a notice under paragraph (a).

(3E) (a) Where a person returns in accordance with subsection (3B) or is returned under section 4A to the Garda Síochána station—

(i) his or her detention shall be continued in accordance with this section for such period as is authorised by this section, and

(ii) the period of time commencing on his or her return to the Garda Síochána station for the continuation of the detention concerned shall be included in reckoning a period of detention permitted by this section.

(b) Where, however, the member of the Garda Síochána in charge of the Garda Síochána station concerned no longer has, at the time of the person’s return, reasonable grounds for believing that the person’s continued detention is necessary for the proper investigation of the offence, the person shall, subject to subsection (5A), be released from custody forthwith unless his or her detention is otherwise authorised by law.

(3F) For the avoidance of doubt it is hereby declared that—

(a) where a person’s detention is suspended under subsection (3A), the detention shall remain suspended until such time as it is continued under subsection (3E) and, accordingly, the period of time during which the detention remains suspended shall be excluded in reckoning a period of detention permitted by this section,

(b) where a person whose detention is suspended under subsection (3A) in respect of an offence, is subsequently arrested and detained (‘subsequent arrest and detention’) in respect of another offence, the subsequent arrest and detention shall not operate to affect the detention which was suspended and it shall remain suspended until such time as it is continued under subsection (3E),

(c) subject to subsection (9), where a person’s detention is suspended under subsection schedule(3A) in respect of an offence but his or her detention is continued under subsection (5A) in respect of another offence, the continuation of the detention under subsection (5A) shall not operate to affect the detention which was suspended in respect of the first mentioned offence and the detention shall in so far as it relates to the first mentioned offence remain suspended until such time as it is continued under subsection (3E).”,

(b) in subsection (5A), by the substitution of “other than an offence to which the detention relates or an offence in respect of which the person’s detention has been suspended under subsection (3A)” for “other than an offence to which the detention relates”,

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

“(6) (a) Subject to paragraphs (c) and (d), if a person is being detained pursuant to this section in a Garda Síochána station between midnight and 8 a.m.—

(i) any questioning of the person for the purpose of the investigation shall be suspended during that period,

(ii) such period of time shall be excluded in reckoning a period of detention permitted by this section, and

(iii) the powers conferred by section 6 shall not be exercised during the period of suspension.

(b) The member of the Garda Síochána in charge of the Garda Síochána station shall inform, or cause to be informed, the detained person that he or she may object to the suspension of questioning between midnight and 8 a.m.

(c) Paragraph (a) shall not have effect if the detained person objects to the suspension of questioning under that paragraph and such objection shall be recorded in writing or by electronic or other similar means.

(d) A member of the Garda Síochána in charge of a Garda Síochána station may authorise the questioning of a person detained pursuant to this section between the hours of midnight and 8 a.m. where the member concerned has reasonable grounds for believing that to suspend the questioning would involve a risk of—

(i) interference with, or injury to other persons,

(ii) serious loss of, or damage to, property,

(iii) the destruction of, or interference with, evidence,

(iv) accomplices being alerted or the securing of their apprehension being made more difficult, or

(v) hindering the recovery of property obtained as a result of an offence or the recovery of the value of any proceeds of an offence.

(e) If at any time during which the authorisation is in effect, the member of the Garda Síochána in charge of the Garda Síochána station believes there are no longer reasonable grounds for the authorisation, it shall be withdrawn.

(f) Where an authorisation is given under paragraph (d) it shall have effect from the time of the giving of a notice in the prescribed form under paragraph (g) until 8 a.m. or until the time of the giving of a subsequent notice in the prescribed form under paragraph (h), as the case may be, and—

(i) the period during which the authorisation has effect shall be included in reckoning a period of detention permitted by this section, and

(ii) the powers conferred by section 6 shall be exercisable in respect of the person concerned.

(g) Where an authorisation is given under paragraph (d), the member of the Garda Síochána in charge of the Garda Síochána station shall give a notice in writing in the prescribed form to the detained person which shall—

(i) state that an authorisation has been given,

(ii) specify the time at which the authorisation was given together with the time at which the notice was given,

and that member shall explain to the person orally the effect of the notice so given.

(h) Where an authorisation is withdrawn under paragraph (e), the member of the Garda Síochána in charge of the Garda Síochána station shall give a notice in writing in the prescribed form to the detained person which shall—

(i) state that the authorisation has been withdrawn, and

(ii) specify the time at which the authorisation was withdrawn together with the time at which the notice was given,

and that member shall explain to the person orally the effect of the notice so given.

(i) An authorisation or a withdrawal of an authorisation under this subsection may be given orally or in writing and if given orally shall be recorded in writing as soon as practicable.

(j) Nothing in paragraph (a) shall operate to prevent the powers conferred by section 6 being exercised in respect of a person who is arrested and detained between the hours of midnight and 8 a.m.

(k) In this subsection ‘prescribed’ means prescribed by the Minister in regulations made by the Minister under section 7.”,

(d) in subsection (9), by the substitution of “subsection (3F)(a), (6), (8), (8A) or (8B) or section 4A or 5A” for “subsection (6), (8), (8A) or (8B)”, and

(e) by the insertion of the following subsection after subsection (11):

“(12) In this section ‘relevant offence’ has the meaning it has in the Criminal Justice Act 2011.”.

8. Failure to return to Garda Síochána station as required pursuant to section 4 of Act of 1984.

8.— The Act of 1984 is amended by the insertion of the following sections after section 4:

“Power to arrest and return person for purpose of continuation of detention.

4A.— (1) Notwithstanding section 10, where a member of the Garda Síochána reasonably suspects that a person has failed to return in accordance with section 4(3B) to a Garda Síochána station for the continuation of his or her detention, the member may, for the purpose of the continuation of the detention—

(a) arrest the person without warrant, and

(b) return him or her to the Garda Síochána station specified for the continuation of the detention concerned.

(2) A person who is arrested under this section shall, as soon as practicable, be returned to the Garda Síochána station which is specified for the continuation of his or her detention.

(3) Where a person is returned to a Garda Síochána station under subsection (2), the period of time commencing on his or her arrest and ending on his or her arrival to the Garda Síochána station concerned shall be excluded in reckoning a period of detention permitted under section 4.

Offence of failing to return to Garda Síochána station.

4B.— (1) If a person whose detention has been suspended under section 4(3A) fails, without reasonable excuse, to return to the Garda Síochána station concerned in accordance with subsection (3B) of section 4, he or she shall be guilty of an offence and shall be liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or to both.

(2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this section may be instituted within 2 years from the date on which the offence was committed.

(3) The provisions of this section are in addition to, and not in substitution for, the provisions of section 4A.

Regulations regarding suspension of person’s detention under section 4(3A).

4C.— (1) Without prejudice to section 7 and to the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (S.I. No. 119 of 1987), the Minister shall make regulations in relation to the procedures that are to apply where a person’s detention is suspended under section 4(3A) and, without prejudice to the generality of the foregoing, such regulations may make provision for—

(a) the form of notices for the purposes of subsections (3B), (3C) and (3D) of section 4, and

(b) the notice period for the purpose of section 4(3D)(b).