Criminal Justice (Mutual Assistance) (Amendment) Act 2015

1. Interpretation

1. In this Act—

“Minister” means the Minister for Justice and Equality;

“Principal Act” means the Criminal Justice (Mutual Assistance) Act 2008.

2. Amendment of section 2 of Principal Act

2. Section 2 of the Principal Act is amended—

(a) in subsection (1) —

(i) in the definition of “international instrument”—

(I) by the insertion of the following paragraph after paragraph (c):

“(ca) the Agreement with Japan;”,

(II) in paragraph (e), by the substitution of “2003 Framework Decision” for “Framework Decision”,

(III) by the insertion of the following paragraphs after paragraph (e):

“(ea) the 2005 Framework Decision;

(eb) the 2006 Framework Decision;”,

(IV) by the insertion of the following paragraph after paragraph (gb) (inserted by section 128(b) of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014:

“(gc) the 2008 Council Decision (special intervention units);

(gd) the 2009 Council Decision;”,

and

(V) by the substitution of the following paragraph for paragraph (m):

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

(ii) in the definition of “member state” (amended by section 128(c) of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014), by the substitution of the following paragraph for paragraph (a):

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

(iii) by the deletion of the definition of “Framework Decision”, and

(iv) by the insertion of the following definitions:

“ ‘Agreement with Japan’ means the Agreement between the European Union and Japan on mutual legal assistance in criminal matters, done at Brussels on 30 November 2009 and at Tokyo on 15 December 2009;

‘2008 Council Decision (special intervention units)’ means Council Decision 2008/617/JHA of 23 June 2008 on the improvement of cooperation between special intervention units of the member states of the European Union in crisis situations[^7];

‘2009 Council Decision’ means Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [^8];

‘2010 Council Decision’ means Council Decision 2010/616/EU of 7 October 2010 on the conclusion of the Agreement between the European Union and Japan on mutual legal assistance in criminal matters[^9];

‘2003 Framework Decision’ means Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence[^10];

‘2005 Framework Decision’ means Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of mutual recognition to financial penalties[^11];

‘2006 Framework Decision’ means Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders[^12];”,

and

(b) in section 2(6) —

(i) by the insertion of the following paragraph after paragraph (c):

“(ca) Schedule 3A sets out the English text of the Agreement with Japan,”,

(ii) in paragraph (e), by the substitution of “2003 Framework Decision” for “Framework Decision”,

(iii) by the insertion of the following paragraphs after paragraph (e):

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

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

(iv) by the insertion of the following paragraphs after paragraph (g):

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

(gb) Schedule 7B sets out the English text of the 2009 Council Decision.”.

3. Amendment of section 31(1) of Principal Act

3. Section 31(1) of the Principal Act is amended by—

(a) the substitution of the following definition for the definition of “certificate”:

“ ‘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;”,

(b) the insertion of the following definition:

“ ‘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;”,

and

(c) the substitution of the following paragraph for paragraph (a) of the definition of “realisable property”:

“(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”.

4. Amendment of section 32(6)(a) of Principal Act

4. Section 32(6)(a) of the Principal Act is amended by the substitution of “section 33” for “section 33(4)”.

5. Amendment of section 34(1) of Principal Act

5. Section 34(1) of the Principal Act is amended by the substitution of “2003 Framework Decision” for “Framework Decision”.

6. Amendment of section 35(6) of Principal Act

6. Section 35(6) of the Principal Act is amended by the substitution of “2003 Framework Decision” for “Framework Decision”.

7. Amendment of section 38 of Principal Act

7. Section 38 of the Principal Act is amended—

(a) in subsection (1), by the insertion of “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” after “confiscation co-operation order”, and

(b) in subsection (4), by the substitution of “any order referred to in subsection (1) ” for “any confiscation co-operation order”.

8. Amendment of section 44 of Principal Act

8. Section 44 of the Principal Act is amended by the substitution of the following paragraph for paragraph (b):

“(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”.

9. Amendment of section 45(1) of Principal Act

9. Section 45(1) of the Principal Act is amended by the insertion of “the Central Authority or” after “on application by”.

10. Amendment of section 48 of Principal Act

10. Section 48 of the Principal Act is amended—

(a) in subsection (2), by the substitution of “this Part” for “Part 5”,

(b) in subsection (3)(a), by the substitution of “2003 Framework Decision” for “Framework Decision”.

11. Amendment of section 49 of Principal Act

11. Section 49 of the Principal Act is amended by—

(a) the insertion of the following subsection after subsection (2):

“(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.”,

and

(b) the insertion of the following subsection after subsection (4):

“(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.”.

12. External confiscation orders (designated states other than member states)

12. The Principal Act is amended by the substitution of the following section for section 51:

“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.”.

13. External confiscation orders (member states)

13. The Principal Act is amended by the insertion of the following section after section 51:

“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.”.

14. Refusal to confiscate

14. The Principal Act is amended by the insertion of the following section after section 51A:

“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) 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) 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) 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.”.

15. Postponement of confiscation

15. The Principal Act is amended by the insertion of the following section after section 51B:

“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.”.

16. Variation or discharge of confiscation co-operation orders

16. The Principal Act is amended by the insertion of the following section after section 51C:

“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.”.

17. Variation or discharge of external confiscation orders from member states

17. The Principal Act is amended by the insertion of the following section after section 51D:

“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.”.

18. Termination of external confiscation orders from member states

18. The Principal Act is amended by the insertion of the following section after section 51E:

“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.”.

19. Central Authority to inform competent authority

19. The Principal Act is amended by the insertion of the following section after section 51F:

“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.”.

20. Amendment of section 53 of Principal Act

20. Section 53 of the Principal Act is amended—

(a) in subsection (1)(a), by the insertion of “an external confiscation order or” before “a confiscation co-operation order”,

(b) by the addition of the following subsections after subsection (6):

“(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 subsection (8), 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 that is a member state 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.”.

21. Amendment of section 56 of Principal Act

21. Section 56 of the Principal Act is amended by the addition of the following subsection:

“(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.”.

22. Amendment of section 57(b) of Principal Act

22. Section 57(b) of the Principal Act is amended by the insertion of “an external confiscation order or” after “shall be construed as references to”.

23. Application of provisions on enforcement and realisation to execution of external confiscation order from member states

23. The Principal Act is amended by the insertion of the following section in Chapter 3 of Part 4 after section 57:

“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.”.

24. Financial penalties

24. The Principal Act is amended by the insertion of the following Part after Part 4:

“Part 4A

Financial Penalties

Interpretation

60A. In this Part—

‘appropriate court’, in relation to an external financial penalty order, means a court in the State that has jurisdiction to impose a financial penalty of the same amount as the sum mentioned in the external financial penalty order;

‘certificate’ means the certificate provided for in Article 4 of the 2005 Framework Decision, the standard form of which is provided for in the Annex to that Framework Decision;

‘competent authority’, in relation to a member state, means—

(a) the issuing judicial authority in the member state, or

(b) the authority in the member state that the General Secretariat of the Council of the European Union has, in accordance with Article 2 of the 2005 Framework Decision, been informed is to be the competent authority in that member state;

‘executing state’, in relation to a financial penalty order, means the member state to which the order is transmitted for enforcement;

‘external financial penalty order’ means a financial penalty order that is made by an issuing judicial authority in an issuing state;

‘financial penalty’, in relation to a defendant, means an obligation for the defendant to pay, further to a conviction for an offence, in an issuing state or the State—

(a) a fine, costs or any other sum of money to the issuing state or the State, as the case may be,

(b) a sum as compensation for the benefit of a victim of the offence, or

(c) a sum of money to a public fund or victim support organisation;

‘financial penalty order’, means an order of—

(a) a court in the State imposing a financial penalty, or

(b) an issuing judicial authority in an issuing state imposing a financial penalty that is enforceable under the law of that state;

‘issuing judicial authority’, in relation to an external financial penalty order, means a judicial authority in an issuing state, as defined in the law of that state, which makes, validates or in any way confirms the external financial penalty order;

‘issuing state’, in relation to an external financial penalty order, means the member state in which that order was made.

Request for execution of financial penalty order in member state

60B. (1) If a financial penalty order relates to a defendant who has property or income, or is normally resident, in a member state, the registrar or clerk of the court concerned shall, on request of the prosecuting authority and subject to any conditions that may be specified by rules of court, give to the Central Authority—

(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 the financial penalty which is the subject of the financial penalty order has not been paid in whole or in part, the Central Authority may transmit to the competent authority in the member state concerned—

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

(b) a certificate, and

(c) a request that the financial penalty order be executed in accordance with the 2005 Framework Decision.

(3) Where the Central Authority makes a request under subsection (2) —

(a) if all or part of the financial penalty order has not been executed in the State or in another member state, stating the amount paid and requesting that the amount to be paid in the member state concerned not exceed the difference between the amount specified in the financial penalty order and the amount paid, and

(b) if the defendant has made any voluntary payment in respect of the financial penalty order after it was transmitted, stating the amount of that voluntary payment and requesting that the amount to be paid to the member state concerned not exceed the difference between the amount specified in the financial penalty order and the amount paid voluntarily, and

(c) if the financial penalty order ceases to be enforceable, stating that fact.

(4) If—

(a) an amount is paid to the member state concerned in pursuance of a request under subsection (2), and

(b) the amount paid is less than, or equal to, the amount ordered to be paid under the financial penalty order,

the amount so ordered under the financial penalty order is deemed to be reduced by an amount equal to the amount paid or, as the case may be, the financial penalty order is deemed to be discharged.

(5) In any proceedings a certificate purporting to be issued by a competent authority in a member state and stating—

(a) the amount of any payment made to the member state pursuant to the request, and

(b) the date of that payment,

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

(6) Transmission of documents referred to in subsections (2) and (3) shall be by any means capable of producing a written record under conditions which allow the competent authority concerned to establish the documents’ authenticity.

Transmission to State of external financial penalty order

60C. (1) An external financial penalty order may be transmitted by the competent authority of an issuing state to the Central Authority with a request for its execution.

(2) The external financial penalty order shall be accompanied by—

(a) a certificate signed and certified as accurate by the competent authority in the issuing state and any supporting documentation, and

(b) any required translations,

and shall include any further information required by the 2005 Framework Decision.

(3) Transmission of the documents referred to in subsections (1) and (2) shall be by any means capable of producing a written record under conditions which allow the Central Authority or the appropriate court to establish the documents’ authenticity.

(4) Subsection (3) is deemed to have been complied with if facsimile copies of those documents 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 appropriate 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 appropriate court shall—

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

(b) agree with that competent authority regarding 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.

External financial penalty orders

60D. (1) Where the Central Authority receives an external financial penalty order that has been transmitted by a competent authority in an issuing state, it shall proceed to the execution of that order as though it were an order of an appropriate court.

(2) Where the Central Authority considers that there are grounds for refusal, variation or termination of the execution of an external financial penalty order transmitted to it in accordance with the 2005 Framework Decision, the Central Authority shall cause an application to be made to the appropriate court for an order under section 60E, 60F or 60G.

(3) Where the Central Authority proceeds to execute an external financial penalty order that has been transmitted by a competent authority in an issuing state, the Fines (Payment and Recovery) Act 2014 shall apply to the execution of that financial penalty order as though it were an order of an appropriate court.

(4) Where a sum of money payable or remaining to be paid under an external financial penalty order is expressed in a currency other than euro, the external financial penalty 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 external financial penalty order.

Refusal to execute external financial penalty order

60E. (1) On application made under section 60D(2) and without prejudice to section 3, the appropriate court shall make an order refusing the execution of an external financial penalty order made by an issuing judicial authority if—

(a) a financial penalty order has been made in the State against the defendant in respect of the conduct which resulted in the making of the external financial penalty order,

(b) a financial penalty order has been made in a state other than the issuing state or the State, in respect of the conduct which resulted in the making of the external financial penalty order, and has been executed,

(c) the conduct which resulted in the making of the external financial penalty order is not an offence in the State,

(d) the execution of the financial penalty order is statute barred in the State,

(e) the criminal conduct concerned was either committed outside the territory of the issuing state concerned or committed wholly or partly in the State,

(f) there is immunity or privilege under the law of the State which makes it impossible to execute the external financial penalty order,

(g) the defendant could not have been convicted in the State of an offence in respect of the conduct which resulted in the making of the external financial penalty order because of his or her age,

(h) the defendant did not appear in person at the proceedings resulting in the external financial penalty order, unless the certificate from the issuing judicial authority states that—

(i) he or she was summonsed to attend in person the proceedings, or he or she was otherwise made aware, by official notification, of the time when, and the place at which, those proceedings were to take place, and he or she was informed that an external financial penalty 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 appointed,

(iii) after having been served with the external financial penalty order and expressly informed of his or her right to a retrial or an appeal at which he or she would have been able to participate (and which would have been an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could have led to a reversal of the original decision, he or she—

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

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

or

(iv) where he or she was not personally served with the external financial penalty order, an undertaking has been given by the issuing state concerned that he or she will be personally served with the external financial penalty 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 will be an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could lead to a reversal of the order, and of the time limit for exercising that right,

or

(i) the amount of the financial penalty the subject of the external financial penalty order is less than €70.

(2) If the certificate did not accompany the external financial penalty order, or is incomplete or manifestly does not correspond to the external financial penalty order, the appropriate court—

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

(b) may refuse to execute the external financial penalty 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.

Variation of amount payable under external financial penalty order

60F. On application made under section 60D(2) and without prejudice to section 3, the appropriate court may make an order—

(a) where that court is satisfied that, had the conduct which was the subject of the conviction on which that external financial penalty order was made been carried out in the State, the maximum amount of a penalty that could have been imposed was less than the sum mentioned in that order, reducing the amount that the defendant is to pay to that maximum amount,

(b) where the court is satisfied that there has been partial payment of the sum mentioned in the external financial penalty order, reducing the amount that the defendant is to pay to the difference between the sum mentioned in the order and the amount already paid, or

(c) where the court is satisfied that, in all the circumstances, the defendant should be excused from paying all or part of the sum mentioned in the external financial penalty order, ordering that the amount be so reduced.

Termination of execution of external financial penalty order

60G. Where an external financial penalty order has been transmitted to the Central Authority for execution in the State, the execution of the external financial penalty order shall terminate as soon as may be after the Central Authority is informed by the competent authority of the issuing state concerned that that external financial penalty order has ceased to be enforceable or has been withdrawn by that issuing state or where the court is satisfied on an application made under section 60D(2) that, in all the circumstances, the defendant should be excused from paying all or part of the sum mentioned in the external financial penalty order, ordering that the amount be so reduced.

Central Authority to inform competent authority

60H. The Central Authority shall inform, by any means capable of producing a written record, the competent authority in the issuing state that transmitted an external financial penalty order of the following:

(a) the Central Authority has received the external financial penalty order, as soon as may be after the Central Authority receives it;

(b) an order refusing the execution of the financial penalty order under section 60E, or reducing the amount to be paid on foot of it under section 60F, has been made, as soon as may be after it is made;

(c) an order terminating the execution of the external financial penalty order has been made, as soon as may be after it is made;

(d) the execution of the external financial penalty order is complete, as soon as may be after it is complete; or

(e) imprisonment or another alternative sanction has been imposed by a court in the State on the defendant in accordance with Article 10 of the 2005 Framework Decision, as soon as may be after it is imposed.

Amounts to accrue to Exchequer

60I. An amount paid on foot of an external financial penalty order shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct, unless an agreement is made between the Central Authority and the competent authority in the issuing state concerned that all or part of that amount will be paid to that issuing state.”.

25. Amendment of section 67 of Principal Act

25. Section 67 of the Principal Act is amended—

(a) in subsection (1) (c), by the substitution of “practicable” for “possible”,

(b) in subsection (3), by the substitution of “practicable” for “possible”,

(c) in subsection (4) (d), by the substitution of “practicable” for “possible”.

26. Amendment of section 68(2)(d) of Principal Act

26. Section 68(2)(d) of the Principal Act is amended by the substitution of “practicable” for “possible”.

27. Amendment of section 69(a) of Principal Act

27. Section 69(a) of the Principal Act is amended by the substitution of “practicable” for “possible”.

28. Amendment of section 74 of Principal Act

28. Section 74 of the Principal Act is amended by the insertion of the following subsections after subsection (12):

“(12A) Where the evidence sought is already in the possession of the Garda Síochána, or where material referred to in subsection (9) is obtained on foot of a warrant under this section, the Commissioner of the Garda Síochána shall arrange for the evidence to be transmitted, to the requesting authority—

(a) without delay,

(b) in accordance with the request, and

(c) in accordance with any directions that the Minister may give.

(12B) Any evidential material taken away by a member of the Garda Síochána under this section may be dealt with in accordance with the request.”.

29. Amendment of section 75 of Principal Act

29. Section 75 of the Principal Act is amended by the insertion of the following subsection after subsection (8):

“(8A) Where the material sought is already in the custody of the Garda Síochána or has been obtained on foot of an order under subsection (10), the Commissioner of the Garda Síochána shall arrange for the material to be transmitted to the requesting authority—

(a) without delay,

(b) in accordance with the request, and

(c) in accordance with any directions that the Minister may give.”.

30. Powers of officers of Revenue Commissioners

30. The Principal Act is amended by the insertion of the following section after section 75:

“75A. Where a request under section 74 or 75 is in relation to a revenue offence, the powers of a member of the Garda Síochána may also be exercised by an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section, and sections 74 and 75 apply, subject to the following and any other necessary modifications:

(a) a reference to the ‘Commissioner of the Garda Síochána’ shall be read, in relation to such a request, as a reference to the ‘Revenue Commissioners’;

(b) a reference to a ‘member’, in relation to the Garda Síochána, shall be read, in relation to such a request, as including a reference to an ‘officer of the Revenue Commissionersauthorised by them in writing to exercise the powers conferred by this section’;

(c) a reference to evidence being ‘in the possession of the Garda Síochána’ shall be read, in relation to such a request, as including a reference to its being ‘in the possession of the Revenue Commissioners’;

(d) a reference to ‘a member of the Garda Síochána not below the rank of inspector’ shall be read, in relation to such a request, as including a reference to ‘an officer of the Revenue Commissioners not below the rank of Higher Executive Officer’;

(e) a reference to material being ‘in the custody of the Garda Síochána’ shall be read as including a reference to its being ‘in the custody of the Revenue Commissioners’.”.

31. Special intervention units

31. The Principal Act is amended by the insertion of the following Part after section 94:

“Part 7A

Special Intervention Units

Interpretation

94A. In this Part—

‘competent authority’, in relation to the State, means the Minister and, in relation to a member state, means the authority designated by that member state to be the competent authority of that member state for the purposes of the 2008 Council Decision (special intervention units);

‘crisis situation’ means any situation in which the competent authority or the competent authority of a member state has reasonable grounds to believe that, as a result of a criminal offence, there exists a serious direct physical threat to persons, property, infrastructure or institutions in the State or in that member state;

‘special intervention unit’—

(a) if and when operating in a member state, has the meaning assigned to it by section 94B,

(b) if and when operating in the State, means a special intervention unit consisting of a law enforcement unit of another member state which is specialised in the control of a crisis situation.

Special intervention unit

94B. For the purpose of providing assistance under section 94E, the Garda Commissioner may establish a special intervention unit, where required for the control of a crisis situation, from such members of the Garda Síochána as the Garda Commissioner considers appropriate.

Request to member state for assistance of special intervention unit in dealing with crisis situation

94C. (1) Where the competent authority is satisfied that—

(a) as a result of the commission of a criminal offence, a crisis situation exists in the State, and

(b) there are reasonable grounds for believing that it is in the public interest to seek the assistance of a special intervention unit from a member state, and

(c) the Government has agreed to the request for the assistance of a special intervention unit,

the competent authority may request the competent authority of that member state to provide the assistance of a special intervention unit in accordance with the 2008 Council Decision (special intervention units).

(2) A request under subsection (1) shall specify the following:

(a) the competent authority making the request;

(b) the nature of the crisis situation;

(c) the criminal offence giving rise to the crisis situation;

(d) the nature and form of the assistance requested;

(e) the operational necessity for the assistance requested; and

(f) the expected period for which the assistance is required.

(3) The competent authority shall furnish to the other competent authority such other information (if any) as would reasonably be required by that authority to decide whether or not to agree to provide the assistance sought.

(4) Where the requested competent authority accedes to the request, the competent authority may, subject to this Chapter, agree with that authority the form of assistance required including—

(a) the provision of equipment,

(b) the provision of expertise,

(c) the assistance in the State of a special intervention unit of the member state concerned.

Request to State for assistance of special intervention unit in dealing with crisis situation

94D. (1) In accordance with the 2008 Council Decision (special intervention units), the competent authority shall consider a request for assistance in dealing with a crisis situation received from the competent authority of a member state.

(2) A request under subsection (1) shall specify the following:

(a) the competent authority making the request;

(b) the nature of the crisis situation;

(c) the criminal offence giving rise to the crisis situation;

(d) the nature and form of the assistance requested;

(e) the operational necessity for the assistance requested; and

(f) the expected period for which the assistance is required.

(3) The competent authority may seek from the requesting competent authority such other information (if any) as would reasonably be required to decide whether or not to agree to provide the assistance sought.

(4) Where the competent authority accedes to the request for assistance, the competent authority may, subject to Government approval, agree with the requesting competent authority the form of assistance including:

(a) equipment;

(b) expertise;

(c) assistance in the member state of a special intervention unit established under section 94B.

Operation of special intervention unit

94E. (1) A special intervention unit formed under section 94B shall be established for a specific purpose and a limited period of time which may be extended, if the circumstances so require, for such period or periods as may be agreed by the competent authority and the other competent authority concerned.

(2) Notwithstanding subsection (1), the competent authority may terminate the provision of assistance when—

(a) the purpose for which the assistance was agreed has been served, or

(b) no further benefit is likely to accrue from the continued operation of the special intervention unit.

(3) Subject to subsection (1), a special intervention unit may operate in the State or in a member state, as the case may be, for so long as it is necessary to do so for the purpose of dealing with the crisis situation for which the unit was established.

(4) A special intervention unit operating in the State shall do so in a supporting capacity to the law enforcement authorities of the State and shall operate—

(a) under the responsibility, authority and direction of the Garda Commissioner,

(b) in accordance with the law of the State, and

(c) within the limits of the powers conferred on the unit under the national law of the member state concerned.”.

32. Eurojust national member

32.The Principal Act is amended by the insertion of the following section after section 95:

“95A. The Minister may, in accordance with the 2009 Council Decision, designate an authority or authorities as the Eurojust national member who may transmit and receive information in accordance with that Council Decision.”.

33. Insertion of Schedules 5A, 5B, 7A, 7B and 7C to Principal Act

33. The Principal Act is amended by the insertion—

(a) after Schedule 3 of Schedule 3A as set out in Schedule 1 to this Act,

(b) after Schedule 5 of Schedule 5A as set out in Schedule 2 to this Act,

(c) after Schedule 5A (inserted by paragraph (b)) of Schedule 5B as set out in Schedule 3 to this Act,

(d) after Schedule 7 of Schedule 7A as set out in Schedule 4 to this Act,

(e) after Schedule 7A (inserted by paragraph (d)) of Schedule 7B as set out in Schedule 5 to this Act.

34. Amendment of section 65 of Criminal Justice Act 1994

34. Section 65 of the Criminal Justice Act 1994 is amended by the insertion of the following subsection after subsection (4):

“(4A) The court may order compensation to be paid under this section to a person with an interest in property affected by an order made under section 35, 51, or 60 or executed under section 51A or 60D of the Criminal Justice (Mutual Assistance) Act 2008—

(a) notwithstanding that he or she is not the person who was the subject of the relevant investigation, and

(b) only if the court is satisfied—

(i) that there has been some serious default on the part of a person concerned in the carrying out of that order on behalf of the State, and

(ii) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of that order.”.

35. Amendment of section 51(1) of Garda Síochána Act 2005

35. Section 51(1) of the Garda Síochána Act 2005 is amended—

(a) in paragraph (a), by the substitution of “organisation,” for “organisation, or”,

(b) in paragraph (b), by the substitution of “such duties, or” for “such duties.”, and

(c) by the insertion of the following paragraph after paragraph (b):

“(c) to participate in a special intervention unit, within the meaning of Part 7A (inserted by section 31 of the Criminal Justice (Mutual Assistance) (Amendment) Act 2015) of the Criminal Justice (Mutual Assistance) Act 2008, for the control of a crisis situation occurring in the territory of a member state.”.

36. Repeals

36. The following provisions are repealed:

(a) section 88(2) of the Principal Act, and

(b) section 2(2) of the Criminal Justice (Joint Investigation Teams) Act 2004.

37. Short title, collective citation and commencement

37. (1) This Act may be cited as the Criminal Justice (Mutual Assistance) (Amendment) Act 2015.

(2) The Principal Act and this Act may be cited together as the Criminal Justice (Mutual Assistance) Acts 2008 and 2015.

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

SCHEDULE 1 Text of Agreement Between the European Union and Japan on Mutual Legal Assistance in Criminal Matters

“Schedule 3A

Text of Agreement Between the European Union and Japan on Mutual Legal Assistance in Criminal Matters

AGREEMENT

between the European Union and Japan on mutual legal assistance in criminal matters

THE EUROPEAN UNION,

and

JAPAN

DESIRING to establish more effective cooperation between the European Union Member States and Japan in the area of mutual legal assistance in criminal matters,

DESIRING that such cooperation will contribute to combating crime,

REAFFIRMING their commitment to respect for justice, principles of the rule of law and democracy, and judicial independence,

HAVE AGREED AS FOLLOWS:

Article 1

Object and purpose

Article 2

Definitions

For the purpose of this Agreement:

(a) the term ‘Contracting Parties’ means the European Union and Japan;

(b) the term ‘Member State’ means a Member State of the European Union;

(c) the term ‘State’ means a Member State or Japan;

(d) the term ‘items’ means documents, records and other articles of evidence;

(e) the term ‘property’ means assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to or interest in such assets;

(f) the term ‘instrumentalities’ means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence;

(g) the term ‘proceeds’ means any property derived from or obtained, directly or indirectly, through the commission of a criminal offence;

(h) the term ‘freezing or seizure’ means temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority; and

(i) the term ‘confiscation’, which includes forfeiture where applicable, means a penalty or a measure, ordered by a court or other judicial authority following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property.

Article 3

Scope of assistance

Assistance shall include the following:

(a) taking testimony or statements;

(b) enabling the hearing by videoconference;

(c) obtaining items, including through the execution of search and seizure;

(d) obtaining records, documents or reports of bank accounts;

(e) examining persons, items or places;

(f) locating or identifying persons, items or places;

(g) providing items in the possession of the legislative, administrative or judicial authorities of the requested State as well as the local authorities thereof;

(h) serving documents and informing a person of an invitation to appear in the requesting State;

(i) temporary transfer of a person in custody for testimony or other evidentiary purposes;

(j) assisting in proceedings related to freezing or seizure and confiscation of proceeds or instrumentalities; and

(k) any other assistance permitted under the laws of the requested State and agreed upon between a Member State and Japan.

Article 4

Designation and responsibilities of Central Authorities

Each State shall designate the Central Authority that is the authority responsible for sending, receiving and responding to requests for assistance, the execution of such requests or their transmission to the authorities having jurisdiction to execute such requests under the laws of the State. The Central Authorities shall be the authorities listed in Annex I to this Agreement.

Article 5

Communication between Central Authorities

Article 6

Authorities competent to originate requests

The authorities which are competent under the laws of the States to originate requests for assistance pursuant to this Agreement are set out in Annex II to this Agreement.

Article 7

Authentication

Documents transmitted by a State pursuant to this Agreement which are attested by the signature or seal of a competent authority or the Central Authority of the State need not be authenticated.

Article 8

Requests for assistance

(a) the name of the competent authority conducting the investigation, prosecution or other proceeding, including judicial proceeding;

(b) the facts pertaining to the subject of the investigation, prosecution or other proceeding, including judicial proceeding;

(c) the nature and stage of the investigation, prosecution or other proceeding, including judicial proceeding;

(d) the text or a statement of the relevant laws, including applicable penalties, of the requesting State;

(e) a description of the assistance requested; and

(f) a description of the purpose of the assistance requested.

(a) information on the identity and location of any person from whom testimony, statements or items are sought;

(b) a list of questions to be asked to the person from whom testimony or statements are sought;

(c) a precise description of persons or places to be searched and of items to be sought;

(d) a description of why the requesting State considers that the requested records, documents or reports of bank accounts are relevant and necessary for the purpose of the investigation into the offence, and other information that may facilitate the execution of the request;

(e) information regarding persons, items or places to be examined;

(f) information regarding persons, items or places to be located or identified;

(g) information on the identity and location of a person to be served with a document or informed of an invitation, that person’s relationship to the proceeding, and the manner in which service is to be made;

(h) information on the allowances and expenses to which a person whose appearance is sought before the competent authority of the requesting State will be entitled; and

(i) a precise description of proceeds or instrumentalities, the location thereof, and the identity of the owner thereof.

(a) a description of any particular manner or procedure to be followed in executing the request;

(b) a description of the reasons for confidentiality concerning the request; and

(c) any other information that should be brought to the attention of the requested State to facilitate the execution of the request.

Article 9

Language

A request and any documents attached thereto shall be accompanied by a translation into an official language of the requested State or, in all or, in urgent cases, into a language specified in Annex III to this Agreement.

Article 10

Execution of requests

Article 11

Grounds for refusal of assistance

(a) a request concerns a political offence or an offence connected with a political offence;

(b) the execution of a request is likely to prejudice its sovereignty, security, ordre public or other essential interests. For the purpose of this subparagraph, the requested State may consider that the execution of a request concerning an offence punishable by death under the laws of the requesting State or, in the relations between one Member State, set out in Annex IV to this Agreement, and Japan, an offence punishable by life imprisonment under the laws of the requesting State, could prejudice essential interests of the requested State, unless the requested State and the requesting State agree on the conditions under which the request can be executed;

(c) there are well-founded reasons to suppose that the request for assistance has been made with a view to prosecuting or punishing a person by reason of race, religion, nationality, ethnic origin, political opinions or sex, or that such person’s position may be prejudiced for any of those reasons;

(d) the person, who is subject to criminal investigations, prosecutions or other proceedings, including judicial proceedings, for which the assistance is requested, in the requesting State, has already been finally convicted or acquitted for the same facts in a Member State or Japan; or

(e) a request does not conform to the requirements of this Agreement.

Article 12

Costs

(a) the fees of an expert witness;

(b) the costs of translation, interpretation and transcription;

(c) the allowances and expenses related to travel of persons pursuant to Articles 22 and 24;

(d) the costs of establishing a video link and costs related to the servicing of a video link in the requested State; and

(e) the costs of an extraordinary nature;

unless otherwise agreed between the requesting State and the requested State.

Article 13

Limitations on use of testimony, statements, items or information

Article 14

Transport, maintenance and return of items

Article 15

Taking of testimony or statements

Article 16

Hearing by videoconference

(a) the authority of the requested State will identify the person to be heard specified in the request, and invite the person to facilitate his or her appearance;

(b) the hearing will be conducted directly by, or under the direction of, the competent authority of the requesting State in accordance with its own laws and the fundamental principles of the law of the requested State;

(c) the authority of the requested State will be present during the hearing, where necessary assisted by an interpreter, and will observe the hearing. If the authority of the requested State is of the view that during the hearing the fundamental principles of the law of the requested State are being infringed, it will immediately take the necessary measures to ensure that the hearing continues in accordance with the said principles;

(d) at the request of the requesting State or the person to be heard, the requested State will ensure, if necessary, that the person is assisted by an interpreter; and

(e) the person to be heard may claim the right not to testify which would accrue to him or her under the laws of either the requesting or the requested State. Other measures necessary for the protection of the person as agreed upon between the authorities of the requesting and the requested States will also be taken.

Article 17

Obtaining of items

Article 18

Bank accounts

Article 19

Examination of persons, items or places

Article 20

Locating or identifying persons, items or places

The requested State shall make its best efforts to locate or identify persons, items or places.

Article 21

Providing items in possession of the legislative, administrative, judicial or local authorities

Article 22

Service of documents and informing a person of an invitation

Article 23

Safe conduct

(a) be subject to detention or any restriction of personal liberty in that State by reason of any conduct or conviction that precedes the departure of the person from the requested State; or

(b) be obliged to give evidence or to assist in any investigation, prosecution or other proceeding, including judicial proceeding, other than the proceeding specified in the request.

(a) the person, having had, for a period of 15 consecutive days from the date when his or her presence is no longer required by the competent authority or from the day when he or she failed to appear before that authority on the scheduled appearance date, an opportunity of leaving, has nevertheless remained voluntarily in the requesting State; or

(b) the person, having left the requesting State, voluntarily returns to it.

Article 24

Temporary transfer of persons in custody

Article 25

Freezing or seizure and confiscation of proceeds or instrumentalities