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,