Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020.

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

2. Interpretation

2. (1) In this Act—

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

“Article 10 certificate”, in relation to a decision on supervision measures, means the certificate—

(a) provided for in Article 10 of the Framework Decision, and

(b) the standard form of which is set out in Annex I to the Framework Decision,

that is required to accompany the decision;

“Central Authority” shall be read in accordance with section 5;

“enactment” means—

(a) an Act of the Oireachtas,

(b) a statute that was in force in Saorstát Éireann immediately before the date of coming into operation of the Constitution and that continued in force by virtue of Article 50 of the Constitution, or

(c) an instrument made under an Act of the Oireachtas or a statute referred to in paragraph (b);

“executing State” means a Member State—

(a) in which a decision on supervision measures is monitored, or

(b) to which a request to monitor a decision on supervision measures has been sent in accordance with the provisions of this Act;

“Framework Decision” means Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (the text of which is set out for ease of reference in the Schedule);

“General Secretariat” means the General Secretariat of the Council of the European Union;

“Minister” means the Minister for Justice and Equality.

(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.

3. Means of transmission of document or information by Central Authority

3. Where the Central Authority is required by a provision of this Act to forward a document or information to the competent authority of a Member State, executing State or issuing State, he or she shall forward the document or information directly to the competent authority by any means capable of producing a record in writing of the document or information under conditions allowing such competent authority to establish the authenticity of that document or information.

4. Application of Act

4. The provisions of this Act shall apply in relation to an offence, whether committed or alleged to have been committed, before, on or after the commencement of those provisions.

5. Central Authority in State

5. (1) The Minister shall be the Central Authority in the State for the purposes of this Act.

(2) The Minister may, by order, designate such persons as he or she considers appropriate to perform such functions of the Central Authority in the State as are specified in the order and different persons may be so designated to perform different functions of the Central Authority in the State.

(3) For so long as an order under subsection (2) remains in force, a reference in this Act to the Central Authority in the State shall, in so far as it relates to the performance of a function specified in the order, be construed as a reference to the person designated by the order to perform the function concerned.

(4) The Minister shall, as soon as is practicable after the making of an order under this section, by notice in writing, inform the General Secretariat of the making of an order and of the names of the persons designated under the order.

6. Orders and regulations

6. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every order (other than an order under section 1(2)) and regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

7. Expenses

7. Any expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Issuing State is Ireland

8. Application of Part 2

8. This Part applies where the State is the issuing State.

9. Interpretation - Part 2

9.(1) In this Part—

“Act of 1997” means the Bail Act 1997;

“competent authority” means a judicial or other authority in the executing State meeting the criteria specified in Article 6 of the Framework Decision and notified to the General Secretariat in accordance with that Article;

“court”, in relation to a supervision decision or proposed supervision decision, means, as appropriate—

(a) the court which made the supervision decision,

(b) the court considering the proposed supervision decision, or

(c) in the case of section 10(3), 18, 19(1), (2) or (3) or 20, the court before which the supervised person is to stand trial for the offence to which the supervision decision or proposed supervision decision relates but only if that court has jurisdiction in relation to bail matters;

“former supervised person” includes a person the subject of a supervision decision that has never come into effect pursuant to section 11(7);

“offence”, in relation to a supervision decision or proposed supervision decision, means alleged offence;

“proposed supervision decision” means a supervision decision that the court is considering whether or not to make;

“proposed supervised person”, in relation to a proposed supervision decision, means the person who would be the subject of such decision if it were made;

“prosecutor”, in relation to an offence, means—

(a) the Director of Public Prosecutions,

(b) a person prosecuting the offence at the suit of the Director of Public Prosecutions, or

(c) a person authorised by law to prosecute the offence;

“relevant recognisance”, in relation to a supervised person, means—

(a) subject to paragraph (b), the recognisance referred to in section 11(3) entered, or to be entered, into by the supervised person, or

(b) if the recognisance referred to in section 11(3) is varied under section 15(3), the recognisance as so varied entered, or to be entered, into by the supervised person;

“supervision decision” means a decision on supervision measures made under—

(a) section 11(2), or

(b) section 12 as read with section 11;

“supervision measures”, in relation to a supervision decision and the supervised person, means one or more than one of the following conditions of bail as may be specified in the supervision decision:

(a) an obligation on the person to keep a specified authority in the executing State informed of his or her place of residence and of any change in such residence in that state;

(b) an obligation on the person to refrain from attending at a specified premises or other place in the executing State;

(c) an obligation on the person to reside or remain in a specified place in the executing State, where appropriate, at specified times;

(d) an obligation on the person to obey general or specified restrictions in relation to travel outside of the territory of the executing State;

(e) an obligation on the person to report at specified times to a specified authority in the executing State;

(f) an obligation on the person to refrain from having contact with specified persons;

(g) an obligation, referred to in Article 8(2) of the Framework Decision, prescribed for the purposes of this paragraph;

“supervised person”, in relation to a supervision decision, means the person the subject of the supervision decision (whether or not the supervision decision has come into effect pursuant to section 11(7)).

(2) A reference in this Part to monitoring a supervision decision means monitoring the supervised person’s compliance with the supervision measures specified in the supervision decision.

10. Obligation to consult with competent authority in executing State

10. (1) (a) For the purposes to which this paragraph applies by virtue of paragraph (b), the Central Authority shall, in so far as is practicable and reasonable, consult with the competent authority—

(i) in the executing State in relation to a supervision decision, and

(ii) in the proposed executing State in relation to a proposed supervision decision.

(b) The purposes to which paragraph (a) applies are the following:

(i) to facilitate the preparation or forwarding of the supervision decision;

(ii) to facilitate the monitoring of the supervision decision;

(iii) where the supervised person has committed a serious breach of the supervision decision, to notify such breach or clarify—

(I) any matter in connection with it, or

(II) any action necessary as a consequence of such breach.

(2) (a) The application of subsection (1) shall include the exchange of information.

(b) Without prejudice to the generality of paragraph (a), such information includes information verifying the identity and place of residence of the supervised person or proposed supervised person and the exchange of information extracted from criminal records as permitted by law.

(3) Where the Central Authority is given information by the competent authority in the executing State (whether during a consultation under subsection (1) or at any time) which indicates that the supervised person or proposed supervised person might pose a risk to the victim of the offence to which the supervision decision or proposed supervision decision relates or to the public, the Authority shall bring such information to the attention of the court and the court shall have due regard to such information in the exercise of its responsibilities under this Part.

11. Power of court to make supervision decision

11. (1) Subsection (2) applies where a person—

(a) is before a court charged with an offence for which the person would, if convicted of the offence, be liable to a term of imprisonment of 12 months or more than 12 months,

F1[(b) establishes that he or she—

(i) is lawfully and ordinarily resident in another Member State, or

(ii) intends to reside in a Member State, other than that referred to insubparagraph (i), and the competent authority of the other Member State has consented to the forwarding of the proposed supervision decision,

and]

(c) makes an application, on notice to the Central Authority and the prosecutor, for a supervision decision.

(2) Subject to subsections (3) to (7), the court may make a supervision decision and grant bail conditional on the competent authority in the other Member State agreeing to recognise the supervision decision and to take the necessary measures to monitor compliance with the supervision decision.

(3) (a) Subject to section 15(3), a supervision decision shall be conditional on the supervised person entering into a recognisance—

(i) subject to one or more supervision measures as specified by the court, and

(ii) that, if the executing State agrees to monitor the supervision decision, requires the supervised person to report to the competent authority in the executing State as soon as is practicable after the supervision decision comes into effect pursuant to subsection (7).

(b) A supervision decision shall not specify a supervision measure referred to in Article 8(2) of the Framework Decision unless the other Member State has notified the General Secretariat that it is prepared to monitor such measure.

(4) A supervision decision shall specify—

(a) the intended duration of the decision,

(b) whether the decision can be renewed, and

(c) the provisional length of time for which monitoring of the decision may be required in so far as it is practicable to indicate that having regard to all the circumstances of the case and of the supervised person.

(5) Subsection (2) shall not be construed to prejudice the generality of the court’s power, under section 2 of the Act of 1997 or under any other enactment or rule of law, to refuse bail in respect of the accused person.

(6) (a) Subject to subsection (3), where bail is granted under subsection (2) by the District Court, Part III of the Act of 1967 shall, with all necessary modifications, apply to such bail as that Part applies to bail granted under section 22 of that Act.

(b) An appeal may be made under section 28(3)(a) of the Act of 1967 against—

(i) a refusal by the District Court to make a supervision decision under subsection (2), or

(ii) the supervision measures specified in a supervision decision made under subsection (2).

(7) A supervision decision shall come into effect when—

(a) in a case in which the supervised person has been remanded in custody—

(i) the Central Authority informs, in writing, the governor of the prison to which the person is remanded that the executing State has agreed to recognise the supervision decision, and

(ii) the person has entered into a recognisance in accordance with subsection (3) taken by the governor of a prison or a prison officer designated by such governor for that purpose, or

(b) in a case in which the supervised person has been remanded on bail—

(i) the Central Authority informs, in writing, the person that the executing State has agreed to recognise the supervision decision, and

(ii) the person has entered into a recognisance in accordance with subsection (3).

(8) The court or the governor of the prison (if any) to which the supervised person is remanded, as appropriate, shall, as soon as is practicable after the supervised person has entered into a recognisance in accordance with subsection (3), inform, in writing, the Central Authority of that matter.

(9) The court shall, as soon as is practicable after making the supervision decision, cause the decision, or a certified copy thereof, to be sent to—

(a) the Central Authority,

(b) the prosecutor,

(c) the governor of the prison (if any) to which the accused person is remanded, and

(d) the supervised person.

(10) Pending the coming into effect, pursuant to subsection (7), of a supervision decision in the executing State, the court shall treat the supervised person in the same manner as it treats a person who is not a supervised person.

(11) The court shall cause the information required to be included in an Article 10 certificate in respect of the supervision decision, in so far as such information is known to the court, to be forwarded to the Central Authority as soon as is practicable after making the decision.

F2[(12) In this section, "other Member State", in relation to a person, means—

(a) wheresubsection (1)(b)(i)applies, the Member State in which the person is lawfully and ordinarily resident, and

(b) wheresubsection (1)(b)(ii)applies, the Member State in which the person intends to reside.]

12. Application for supervision decision from person granted bail in State

12. (1) Subsection (2) applies where a person—

F3[(a) is—

(i) lawfully and ordinarily resident in another Member State, or

(ii) a person in respect of whom the competent authority of another Member State has consented to the forwarding of the proposed supervision decision,]

(b) has been granted bail in the State, and

(c) subsequent to being granted such bail, wishes to F3[reside in the other Member State] pending the trial of the offence to which the bail relates.

(2) The person may, on notice to the Central Authority and the prosecutor, make an application to the court that granted bail to request that court to make a supervision decision in his or her case as regards his or her wish to F3[reside in] the other Member State.

(3) Section 11 shall, with all necessary modifications, apply to an application under subsection (2) as that section applies to an application under section 11(1).

F4[(4) In this section, "other Member State", in relation to a person, means—

(a) wheresubsection (1)(a)(i)applies, the Member State in which the person is lawfully and ordinarily resident, and

(b) wheresubsection (1)(a)(ii)applies, the Member State the competent authority of which has consented to the forwarding of a proposed supervision decision in relation to the person.]

13. Provisions supplementary to sections 11 and 12

13. Where an appeal is made under section 28(3)(a) of the Act of 1967 to the High Court against a decision of the court under section 11 or 12, the High Court shall direct the Central Authority to inform the competent authority in the other Member State F5[(within the meaning ofsection 11or12, as the case may be)] of that matter.

14. Forwarding of supervision decision to competent authority in executing State

14. (1) On receipt of a supervision decision, the Central Authority shall forward the decision, or a certified copy thereof, to the competent authority in the other Member State F6[(within the meaning ofsection 11or12, as the case may be)].

(2) Where the Central Authority forwards the supervision decision under subsection (1) to the competent authority in the executing State, he or she shall—

(a) forward with it an Article 10 certificate, and

(b) where the official language of the executing State is not English, forward a translation of the Article 10 certificate into the official language or one of the official languages of the executing State, unless the Central Authority knows that such a translation is not required by the competent authority in that state.