Criminal Records (Exchange of Information) Act 2019

1. Interpretation

1. (1) In this Act—

“Central Authority” means the central authority designated in the State under section 2;

“central authority”, in relation to a Member State, means a central authority designated in that Member State in accordance with Article 3 of the Framework Decision;

“conviction”, in relation to a person, means the conviction by a court of a natural person of an offence or, in the case of an appeal (whether against conviction or sentence, or both), the final decision of a court of the appeal or the withdrawal of the appeal, as recorded in the Criminal Records Database or, as the case may be, the criminal record of a Member State;

“court” means—

(a) in relation to a conviction of a person in the State, any court in the State exercising criminal jurisdiction and includes a Special Criminal Court but does not include a court martial, or

(b) in relation to a conviction of a person in a Member State or a third country, any court in the Member State or, as the case may be, third country exercising criminal jurisdiction;

“criminal record”, in relation to a Member State, means, subject to section 6(5), the national register or registers in the Member State containing a record of convictions in accordance with its national law;

“Criminal Records Database” means the database maintained by the Garda Síochána that contains a record of convictions;

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“Framework Decision” means Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States, the text of which in the English language is for convenience of reference set out in Schedule 1;

“Member State” means a Member State of the European Union other than the State;

“requesting Member State” shall be construed in accordance with section 7;

“third country” means a country or territory other than the State or a Member State.

(2) A word or expression that is used in this Act and is also used in the Framework Decision has, unless the context otherwise requires, the same meaning in this Act as it has in the Framework Decision.

2. Central Authority in State

2. (1) The Garda Commissioner is designated as the Central Authority in the State for the purposes of this Act and the Framework Decision.

(2) The Garda Commissioner may delegate in writing (in this section referred to as a “delegation”) such functions of the Central Authority as may be specified in the delegation to—

(a) members of the Garda Síochána specified by rank or name, or

F1[(b) members of garda staff (within the meaning of thePolicing, Security and Community Safety Act 2024) specified by grade, position, name or otherwise,]

and different functions may be so delegated to different persons.

(3) A delegation may—

(a) relate to the performance of a function either generally or in a particular case or class of case or in respect of a particular matter,

(b) be made subject to conditions or restrictions, and

(c) be revoked or varied by the Garda Commissioner at any time.

(4) A delegation does not preclude the Garda Commissioner from performing the function or functions to which the delegation relates.

(5) While a delegation is in force, a reference in this Act to the Central Authority, in so far as it relates to the performance of a function specified in the delegation, shall be construed as a reference to the person to whom the function is so delegated.

(6) An act or thing done by a person pursuant to a delegation has the same force and effect as if done by the Garda Commissioner.

(7) In this section, “Garda Commissioner” means the Commissioner of the Garda Síochána.

3. Recording of nationality of convicted persons

3. The Central Authority shall take such steps as may be necessary to ensure that when information relating to a conviction in the State of a person is recorded on the Criminal Records Database, it shall be accompanied by information, where available, in respect of the nationality or nationalities of the convicted person.

4. Information relating to conviction in State of person who is national of Member State

4. (1) Where a person is—

(a) convicted in the State of an offence, and

(b) a national of one or more Member States,

the Central Authority shall, as soon as practicable, inform the central authority of the Member State, or of each Member State of which it is known that the convicted person is a national, of the conviction by transmitting to such central authority or central authorities concerned the information specified in Schedule 2 in relation to that conviction.

(2) When transmitting information to a central authority under subsection (1), the Central Authority may include any other information contained in the Criminal Records Database relating to the conviction that is in addition to the information specified in Schedule 2.

(3) Where information transmitted to a central authority under subsection (1) or (2) is subsequently altered or deleted in the Criminal Records Database, the Central Authority shall, as soon as practicable, transmit the information as so altered or deleted to the central authority concerned.

(4) Where information is transmitted to a central authority under subsection (1) or (2) the Central Authority shall, on the request of the central authority concerned in an individual case, transmit to such central authority a copy of the conviction and any sentence imposed, or related order of a court, in respect of the conviction and any other information relevant thereto, for the purpose of enabling that central authority to consider whether any measures are necessitated in the Member State of the person’s nationality.

(5) When transmitting information to the central authority of a Member State in accordance with this section, the Central Authority may inform the central authority concerned that the information transmitted may not be retransmitted for any purposes other than for the purpose of criminal proceedings.

(6) This section applies irrespective of whether or not the person referred to in subsection (1) is also a national of the State.

5. Information received under Article 4 of Framework Decision

5. (1) Where the Central Authority receives information from a central authority of a Member State under Article 4(2) or (3) of the Framework Decision relating to a conviction in a Member State of a person who is national of the State, the Central Authority—

(a) shall store such of the information as falls within the categories of information to which paragraphs 1 and 2 of Schedule 2 apply, and

(b) may store such of the information as falls within the categories of information to which paragraph 3 of Schedule 2 applies or any other information transmitted to it concerning the conviction,

for the purpose of retransmitting such information in accordance with section 7.

(2) Where the Central Authority receives information from a central authority of a Member State under Article 4(3) of the Framework Decision in relation to the alteration or deletion of information stored in accordance with subsection (1), the Central Authority shall alter or delete the stored information accordingly and shall retransmit such information in accordance with section 7.

(3) Upon receiving information referred to in subsections (1) or (2) from a central authority of a Member State, the Central Authority may, in individual cases, request from the central authority concerned a copy of the conviction and any sentence imposed, or any related order of a court, in respect of the conviction, and any other information relevant thereto, in order to enable it to consider whether any measures are necessitated in the State.

6. Request for information under Article 6 of Framework Decision

6. (1) Where information from the Criminal Records Database in relation to a person is required—

(a) for the purposes of criminal proceedings against the person in the State, or

(b) by or under any enactment or rule of law for a purpose specified in Schedule 3,

the Central Authority may, in accordance with subsection (4), submit a request under Article 6 of the Framework Decision to the central authority of a Member State for information contained in the criminal record of the Member State in relation to the person for that purpose.

(2) Where a person who is a national of a Member State makes a request to the Garda Síochána for a copy of his or her criminal record, the Central Authority shall submit a request to the central authority of the Member State for information contained in the criminal record of that Member State in relation to the person, for the purpose of including the information in the information provided by it to the person.

(3) Where a person makes a request to the Garda Síochána for a copy of his or her criminal record, the Central Authority may, for the purposes of including the information in the information provided by the Central Authority to the person—

(a) in the case of a person who is or was a national or a resident of the State, submit a request to the central authority of a Member State, for information contained in the criminal record of the Member State in relation to the person, or

(b) in the case of a person who is or was a national or a resident of a Member State, submit a request to the central authority of a Member State, for information contained in the criminal record of the Member State in relation to the person.

(4) A request made under this section by the Central Authority shall be made using the form set out in the Annex to the Framework Decision in the official language, or one of the official languages, of the Member State to whom the request is submitted.

(5) In subsections (2) and (3), “criminal record”, in relation to a person and his or her own criminal record, means a record of the person’s convictions, whether within or outside the State.

7. Reply to request for information under Article 6 of Framework Decision in relation to person who is national of State

7. (1) This section applies to a request made to the Central Authority by a central authority of a Member State (in this Act referred to as the “requesting Member State”) under Article 6 of the Framework Decision for information contained in the Criminal Record Database in relation to a person who is a national of the State.

(2) Where a request to which this section applies is made for the purposes of criminal proceedings in the requesting Member State, the Central Authority shall transmit to the central authority of the requesting Member State the following information (if any) in relation to the person who is the subject of the request:

(a) information relating to convictions in the State contained in the Criminal Records Database;

(b) information relating to convictions in a Member State transmitted to the Central Authority after 27 April 2012 under Article 4 of the Framework Decision and stored in accordance with section 5;

(c) information relating to convictions in a Member State transmitted to the Central Authority on or before 27 April 2012 and contained in the Criminal Records Database;

(d) information relating to convictions in a third country transmitted to the Central Authority and contained in the Criminal Records Database.

(3) Where a request to which this section applies is made for a purpose specified in Schedule 3, the Central Authority shall, subject to subsection (4), transmit to the central authority of the requesting Member State the following information (if any) in relation to the person the subject of the request:

(a) information relating to convictions in the State contained in the Criminal Records Database;

(b) information relating to convictions in a Member State transmitted to the Central Authority after 27 April 2012 under Article 4 of the Framework Decision and stored in accordance with section 5;

(c) information relating to convictions in a Member State transmitted to the Central Authority on or before 27 April 2012 and contained in the Criminal Records Database;

(d) information relating to convictions in a third country transmitted to the Central Authority and contained in the Criminal Records Database.

(4) (a) The Central Authority shall not transmit information under subsection (3)(b) relating to convictions in a Member State (in this subsection referred to as the “convicting Member State”) where the central authority of the convicting Member State who transmitted that information to the Central Authority informed it that the information may not be retransmitted for any purposes other than the purpose of criminal proceedings.

(b) In a case to which paragraph (a) applies, the Central Authority shall inform the central authority of the requesting Member State of the convicting Member State who transmitted the information concerned to it under Article 4 of the Framework Decision, so as to enable the central authority of the requesting Member State to submit a request for such information directly to the convicting Member State.

(5) The Central Authority shall ensure that any information transmitted under subsection (2)(b) or (3)(b) has been updated (if applicable) in accordance with section 5(2).

(6) (a) The Central Authority shall reply to a request referred to in subsection (1) using the form set out in the Annex to the Framework Decision.

(b) The reply shall be—

(i) in one of the official languages of the State or in any other language accepted by the requesting Member State, and

(ii) accompanied by a list of the convictions (if any) referred to in subsection (2) or (3), as the case may be.

8. Reply to request for information under Article 6 of Framework Decision in relation to person who is not national of State

8. (1) The Central Authority, upon receipt of a request from a central authority of a Member State under Article 6 of the Framework Decision for any information contained in the Criminal Records Database in relation to a person who is not a national of the State shall, where the request is for—

(a) the purposes of criminal proceedings in the requesting Member State, or

(b) a purpose specified in Schedule 3,

transmit to the central authority of the requesting Member State any information relating to convictions in the State contained in the Criminal Records Database in relation to the person who is the subject of that request.

(2) (a) The Central Authority shall reply to a request referred to in subsection (1) using the form set out in the Annex to the Framework Decision.

(b) The reply referred to in paragraph (a) shall be—

(i) in one of the official languages of the State or in any other language accepted by the requesting Member State, and

(ii) accompanied by a list of the convictions (if any) referred to in subsection (1).

9. Time limits for replies to requests under Article 6 of Framework Decision

9. (1) The Central Authority shall, subject to subsection (2), transmit replies to requests referred to in Article 6(1) of the Framework Decision as soon as practicable and in any event not later than 10 working days from the date the request is received.

(2) Where, upon receipt of a request referred to in Article 6(1) of the Framework Decision, the Central Authority requires further information to identify the person the subject of the request, it shall, as soon as practicable, consult the central authority that made the request for the purposes of enabling the Central Authority to provide a reply to the request concerned within 10 working days from the date on which the additional information is received.

(3) The Central Authority shall transmit replies to requests referred to in Article 6(2) of the Framework Decision within 20 working days from the date the request was received by the Central Authority.

10. Transmission of information in accordance with Council Decision

10. (1) The Central Authority shall transmit electronically, in the standardised format required by the Council Decision the following:

(a) information in accordance with section 4;

(b) requests in accordance with section 6;

(c) replies in accordance with section 7 or 8;

(d) all other relevant information in relation to the information, requests and replies referred to in paragraphs (a), (b) and (c).

(2) When transmitting information in accordance with section 4(1), (2) or (3), 7 or 8 relating to the name or legal classification of an offence, the Central Authority shall, in respect of each offence referred to in the transmission, refer to the code opposite the category of offences set out in Annex A to the Council Decision to which the offence corresponds in accordance with Article 4(1) of that Decision.

(3) When transmitting information in accordance with section 4(1), (2) or (3), 7 or 8 relating to a sentence, penalty or measure imposed in respect of a conviction, or any subsequent decision modifying the enforcement of the sentence, the Central Authority shall, in respect of each of the penalties and measures referred to in the transmission—

(a) refer to the code opposite the category of penalties and measures set out in Annex B to the Council Decision to which the penalty or measure corresponds in accordance with Article 4(2) of the Council Decision, and

(b) provide, where applicable, in accordance with Article 4(2) of, and Annex B to, the Decision, available information relating to the nature and conditions of the execution of the penalty or measure imposed.

(4) In this section, “Council Decision” means Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA, the text of which in the English language is for convenience of reference set out in Schedule 4.

11. Conditions for use of personal data

11. (1) Subject to subsection (3), personal data transmitted under Article 7(1) or (4) of the Framework Decision to the Central Authority for the purposes of criminal proceedings may be used only for the purposes of the criminal proceedings for which it was requested by the Central Authority as specified in the form referred to in section 6(4).