PART 1

Preliminary and General

1 .— (1) This Act may be cited as the Criminal Justice (Mutual Assistance) Act 2008.

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

2 .— (1) In this Act, except where the context otherwise requires—

“ Act of 1994 ” means the Criminal Justice Act 1994 ;

“ Agreement with Iceland and Norway ” means the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the 2000 Convention and 2001 Protocol, done at Brussels on 19 December 2003;

“ Articles 49 and 51 ”, in relation to the Schengen Convention, means those Articles of the Convention, as applied to the State by Council Decision (2002/192/EEC) of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis, but does not include paragraph (a) (repealed by Article 2.2 of the 2000 Convention) of Article 49;

“ authority ” includes a person;

“1959 Convention” means the European Convention on Mutual Assistance in Criminal Matters, done at Strasbourg on 20 April 1959, and includes the Additional Protocol of 17 March 1978 thereto;

“2000 Convention” means the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, done at Brussels on 29 May 2000;

“ 2005 Convention ” means the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, done at Warsaw on 16 May 2005;

“ 2005 Council Decision ” means Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and co-operation concerning terrorist offences;

“ 1977 Terrorism Convention ” means the European Convention on the Suppression of Terrorism, done at Strasbourg on 27 January 1977;

“ Central Authority ” means the authority mentioned in section 8 ;

“criminal conduct” means any conduct—

(a) which constitutes an offence, or

(b) which occurs in a designated state and would, if it occurred in the State, constitute an offence;

“ criminal investigation ”—

(a) means an investigation into whether a person has committed an offence (within the meaning of the relevant Part) under the law of the State or a designated state in respect of which, where appropriate, a request for assistance may be made under the relevant international instrument, and

(b) includes an investigation into whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds;

“ criminal proceedings ” means proceedings, whether in the State or a designated state, against a person for an offence and includes—

(a) proceedings to determine whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds,

(b) proceedings concerning measures relating to—

(i) the deferral of delivery or suspension of enforcement of a sentence or preventive measure,

(ii) conditional release, or

(iii) a stay or interruption of enforcement of a sentence or preventive measure,

(c) in relation to requests for assistance by a requesting authority in a member state—

(i) without prejudice to subsection (2)(b) of sections 74 and 75 (requests for evidence or evidential material), proceedings brought by an administrative authority in respect of conduct which is punishable under the law of the State or that state or of both of them, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters,

(ii) proceedings in claims for damages arising from wrongful prosecution or conviction,

(iii) clemency proceedings,

(iv) civil actions joined to criminal proceedings, as long as the criminal court concerned has not taken a final decision in the criminal proceedings, and

(v) proceedings in respect of measures relating to—

(I) the deferral of delivery or suspension of enforcement of a sentence or preventive measure,

(II) conditional release, or

(III) a stay or interruption of enforcement of a sentence or preventive measure,

and

(d) in relation to requests for assistance by a requesting authority in a designated state (other than a member state), without prejudice to subsection (3) of sections 74 and 75 proceedings brought by an administrative authority in respect of conduct which is punishable under the law of the State or that state or of both of them, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters;

“designated state” means a member state and any other state designated under section 4 ;

“ EC/Swiss Confederation Agreement ” means the Co-operation Agreement between the European Community and its member states, of the one part, and the Swiss Confederation, of the other part, to combat fraud and any other illegal activity to the detriment of their financial interests, done at Luxembourg on 26 October 2004;

“ evidence ” means oral evidence or, as appropriate, any document or thing which could be produced as evidence in criminal proceedings, including any information in non-legible form which could be converted into permanent and legible form for the purposes of those proceedings;

“ 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;

“ imprisonment ” includes detention and, in relation to a designated state, any other form of deprivation of liberty;

“ international instrument ” means any of the following agreements, or provisions of agreements, between the State and other states or another state in relation to mutual assistance in criminal matters:

(a) the 2000 Convention;

(b) the 2001 Protocol;

(c) the Agreement with Iceland and Norway;

(d) Articles 49 and 51 of the Schengen Convention;

(e) the Framework Decision;

(f) Title III of the EC/Swiss Confederation Agreement;

(g) the 2005 Council Decision;

(h) the 1959 Convention;

(i) the Second Additional Protocol;

(j) Chapter IV of the 2005 Convention;

(k) Articles 13, 14, 18, 19 and 20 of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000;

(l) Articles 46, 49, 50 and 54 to 57 of the United Nations Convention against Corruption, done at New York on 31 October 2003;

(m) a bilateral agreement between the State and a designated state for the provision of such assistance; and

(n) any reservation or declaration made in accordance with such an instrument;

“ member state ” means—

(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, Framework Decision or 2005 Council Decision, and

(b) Iceland and Norway or any other designated state, for the purposes of mutual assistance under any of those provisions;

“ Minister ” means the Minister for Justice, Equality and Law Reform;

“ offence ”—

(a) means an offence in respect of which a request for mutual assistance may be made under the relevant international instrument,

(b) includes a revenue offence, if or to the extent that the relevant international instrument or the law of the designated state concerned provides for mutual assistance in respect of such an offence, but

(c) does not include a political offence;

“ place ” means a physical location and includes—

(a) a dwelling, residence, building or abode,

(b) a site,

(c) a vehicle, whether mechanically propelled or not,

(d) a vessel, whether sea-going or not,

(e) an aircraft, whether capable of operation or not, and

(f) a hovercraft;

“ political offence ”, except in Part 2 —

(a) includes an offence connected with a political offence,

(b) does not include any offence in respect of which a person may be surrendered to another state under the European Arrest Warrant Act 2003 or the Extradition Acts 1965 to 2001;

“ prison ” means a place of custody administered by or on behalf of the Minister (other than a Garda Síochána station) and includes—

(a) St. Patrick’s Institution,

(b) a place provided under section 2 of the Prisons Act 1970 , and

(c) a place specified under section 3 of the Prisons Act 1972 ;

“ property ”, except in Part 4 , includes—

(a) money and all other property, real or personal, movable or immovable,

(b) a chose in action and any other intangible or incorporeal property,

(c) proceeds of the disposal of property, and

(d) evidence;

“ 2001 Protocol ” means the Protocol to the 2000 Convention, done at Luxembourg on 16 October 2001;

“ relevant international instrument ” means the international instrument in accordance with which a request for assistance is made;

“ request ” means a request for assistance which is made by a requesting authority under and in accordance with a relevant international instrument;

“ requesting authority ” means—

(a) a court or tribunal exercising jurisdiction in criminal proceedings in a designated state and making a request, or

(b) any other authority in that state appearing to the Minister to have the function of making the request;

“ revenue offence ”—

(a) means an offence under the law of the State or a designated state in connection with taxes, duties, customs or exchange regulation,

(b) includes such an offence under the law of a designated state irrespective of whether the law of the State provides for taxes, duties, customs or exchange regulation of the same kind as that state provides, but

(c) does not include—

(i) an offence involving the use or threat of force or perjury or the forging of a document issued under statutory authority, or

(ii) an offence alleged to have been committed by an officer of the Revenue of that state in his or her capacity as such officer;

“ Schengen Convention ” means the Convention, signed in Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985;

“ Second Additional Protocol ” means the Second Additional Protocol of 8 November 2001 to the 1959 Convention;

“ state ”, in relation to a state other than the State, includes a territory, whether in the state or outside it—

(a) for whose external relations the state or its government is wholly or partly responsible, and

(b) to which the relevant international instrument applies or whose law provides for mutual assistance in criminal matters,

and “ designated state ” and “ member state ” are to be construed accordingly.

(2) Reservations made pursuant to Article 13 of the 1977 Terrorism Convention do not apply to mutual assistance in criminal matters between member states.

(3) The following provisions of this Act give effect to Council Decision (2002/192/EC) of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis, in so far as those provisions relate to mutual assistance in criminal matters:

(a) paragraph (c) of the definition of “ criminal proceedings ” in subsection (1);

(b) subsections (1) and (2) of sections 74 and 75 ;

(c) section 82 (1)(b).

(4) Judicial notice shall be taken of a relevant international instrument.

(5) When interpreting any provision of this Act—

(a) a court may consider the relevant international instrument and any explanatory document issued in connection with it, and

(b) give the instrument and any such document such weight as is appropriate in the circumstances.

(6) For convenience of reference—

(a) Schedule 1 sets out the English text of the 2000 Convention,

(b) Schedule 2 sets out the English text of the 2001 Protocol,

(c) Schedule 3 sets out the English text of the Agreement with Iceland and Norway,

(d) Schedule 4 sets out the English text of Articles 49 and 51 of the Schengen Convention,

(e) Schedule 5 sets out the English text of the Framework Decision,

(f) Schedule 6 sets out the English text of Title III of the EC/Swiss Confederation Agreement,

(g) Schedule 7 sets out the English text of the 2005 Council Decision,

(h) Schedule 8 sets out the English text of the 1959 Convention and the First Additional Protocol thereto,

(i) Schedule 9 sets out the English text of the Second Additional Protocol to the 1959 Convention,

(j) Schedule 10 sets out the English text of Chapter IV of the 2005 Convention,

(k) Schedule 11 sets out the English text of Articles 13, 14, 18, 19 and 20 of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000,

(l) Schedule 12 sets out the English text of Articles 46, 49, 50 and 54 to 57 of the United Nations Convention against Corruption, done at New York on 31 October 2003,

(m) Schedule 13 sets out the English text of the Agreement on Mutual Legal Assistance between the European Union and the United States of America, done at Washington D.C. on 25 June 2003, and

(n) Schedule 14 sets out the English text of the Treaty between the Government of Ireland and the Government of the United States on Mutual Assistance in Criminal Matters, done at Washington D.C. on 18 January 2001, as applied by the Instrument contemplated by Article 3(2) of the said Agreement of 25 June 2003 and done at Dublin on 14 July 2005.

3 .— (1) Assistance shall be refused—

(a) if the Minister considers that providing assistance would be likely to prejudice the sovereignty, security or other essential interests of the State or would be contrary to public policy (ordre public),

(b) if there are reasonable grounds for believing—

(i) that the request concerned was made for the purpose of prosecuting or punishing a person on account of his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation,

(ii) that providing assistance—

(I) may prejudice a person’s position for any of those reasons, or

(II) may result in the person being subjected to torture or to any other contravention of the European Convention on Human Rights,

(c) if the request is not in accordance with the relevant international instrument, or

(d) if, and for as long as, the provision of assistance would prejudice a criminal investigation, or criminal proceedings, in the State,

and may be refused on any other ground of refusal of assistance specified in the relevant international instrument.

(2) In this section, “ torture ” has the meaning given to it by the Criminal Justice (United Nations Convention against Torture) Act 2000 .

4 .— The Minister for Foreign Affairs, after consultation with the Minister, may by order designate a state (other than a member state) for the purposes of mutual assistance between the State and that state under this Act or specified Parts or provisions of it in accordance with the relevant international instrument.

5 .— (1) Subject to the provisions of this Act, Articles 4 (formalities and procedures in the execution of requests) and 6 (transmission of requests) of the 2000 Convention and Articles 4 (channels of communication) and 8 (procedure) of the Second Additional Protocol have the force of law in their application to the State.

(2) For the purposes of subsection (1)—

(a) references in the Articles mentioned in that subsection to a requested state or requested party or to authorities, judicial authorities or competent authorities of that state or party shall be construed as references to, where appropriate, the Central Authority or the judge or court concerned, and

(b) references to those Articles are references to the Articles as modified by any reservation or declaration made in relation to them.

6 .— (1) Subject to the provisions of this Act concerning particular requests, the relevant international instrument concerned has effect in the State in relation to—

(a) the form of the requests and the information they are to provide,

(b) the action that may be taken where a request does not comply with the provisions of the instrument or where the information provided is not sufficient to enable the request to be dealt with,

(c) any restrictions in the instrument in relation to the refusal of particular requests,

(d) any requirements in the instrument relating to the protection, disclosure, use or transmission of information or evidence received under it,

(e) the formalities and procedures in dealing with requests, unless those formalities and procedures are contrary to the fundamental principles of the law of the State, and

(f) the transmission and mode of transmission of requests, including, where so provided for in the instrument, transmissions via the International Criminal Police Organisation (Interpol) in urgent cases.

(2) This Act applies only to requests made after the relevant international instrument has entered into force, or, as the case may be, has been applied, between the State and the designated state concerned.

(3) Requests received and not executed before the date on which they would fall to be dealt with under this Act shall be dealt with, or continue to be dealt with, as if this Act had not been passed.

(4) Requests shall—

(a) be addressed to the Central Authority, unless the relevant international instrument provides otherwise,

(b) where appropriate, indicate the relevant international instrument under which the request is being made, and

(c) be in writing or in any form capable of producing a written record under conditions allowing their authenticity to be established.

(5) Requests to a designated state and any supporting or related documents shall be accompanied, where appropriate, by a translation of the requests and of any such documents, or of the material parts of them, into the official language or one of the official languages of that state, unless it is known that such a translation is not required by the appropriate authority in the designated state concerned.

(6) Requests from a designated state and any supporting or related documents, if not in Irish or English, shall be accompanied by a translation into either of those languages of the requests and of any such documents or the material parts of them.

(7) The Central Authority may—

(a) accept requests and any supporting or related documents as evidence of the matters mentioned in them unless it has information to the contrary, and

(b) seek such additional information from the requesting authority concerned as may be necessary to enable a decision to be taken on a request.

(8) Action on a request may be postponed by the Minister if the action would prejudice criminal proceedings or a criminal investigation.

(9) Before refusing a request or postponing action on it the Minister shall, where appropriate and having consulted the requesting authority, consider whether the request may be granted partially or subject to such conditions as he or she considers necessary.

(10) Reasons shall be given for any such refusal or postponement.

(11) The Minister shall also inform a requesting authority of any circumstances that make it impossible to comply with the request or are likely to delay compliance significantly.

7 .— (1) Evidence obtained in the State in compliance with a request shall be transmitted to the designated state concerned in accordance with the directions of the Minister.

(2) If any such evidence is to be accompanied by a certificate, affidavit or other verifying document, the judge concerned or, as the case may be, the appropriate member of the Garda Síochána or officer of the Revenue Commissioners, shall supply the required document for transmission to the designated state.

(3) Where the evidence consists of a document, the original or a copy shall be transmitted and, where it consists of any other item, the item itself or a description, photograph or other representation of it shall be transmitted, as may be necessary to comply with the request.

8 .— (1) The Minister is the Central Authority for the purposes of this Act.

(2) The Central Authority has the function of receiving, transmitting and otherwise dealing with requests, except those made under Part 3 , and of co-operating, in accordance with the relevant international instrument, with corresponding persons or bodies in designated states in relation to requests received from them.

(3) The Minister may, if he or she considers it appropriate, designate persons to perform specified functions of the Central Authority, and different persons may be so designated to perform different such functions.

(4) While such a designation 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 designation, is to be construed as a reference to the person so designated to perform that function.

(5) The Minister may amend or revoke a designation.

(6) The Minister shall, by notice in writing, inform the General Secretariat of the Council of the European Union of the names of any persons designated for the time being under this section.

9 .— (1) Without prejudice to section 100 , the Director of Public Prosecutions, Commissioner of the Garda Síochána or Revenue Commissioners (in this section referred to as the “ providing authority ”) may, in accordance with the relevant international instrument and without receiving a request to that effect, communicate information to a competent authority in a designated state either relating to matters which might give rise to such a request or for the purpose of current criminal investigations or criminal proceedings or of initiating either of them.

(2) The providing authority may impose conditions on the use by the competent authority of the information so communicated.

(3) Subsection (2) does not apply in relation to the competent authority of a designated state which has made a declaration under paragraph 4 of Article 11 of the Second Additional Protocol unless, as required by such a declaration, the authority has received prior notice of the nature of the information to be communicated and has agreed to its being communicated.

(4) Any conditions imposed by a competent authority in a designated state on the use of information communicated by it to the providing authority shall be complied with pursuant to the relevant international instrument.

(5) In this section references to a competent authority in a designated state are references to the authority in such a state appearing to the providing authority to be the appropriate authority for receiving or communicating the information concerned.

10 .— Without prejudice to section 11 , the following provisions are repealed:

(a) Part VII (International Co-operation) of the Act of 1994 and the Second Schedule (taking of evidence for use outside State) thereto;

(b) section 15 (amendment of Act of 1994) of the Criminal Justice (Miscellaneous Provisions) Act 1997 ; and

(c) section 22 (amendment of section 56A of Act of 1994) of the Criminal Justice (Theft and Fraud Offences) Act 2001 .

11 .— (1) Where—

(a) mutual assistance between the State and another state was provided for by or under a provision of Part VII of the Act of 1994 before the repeal of that Part on the commencement of section 10 (a), and

(b) the state is not designated under section 4 for the purposes of that assistance,

the assistance concerned shall continue to be provided under and in accordance with the corresponding provision of this Act, which accordingly shall have effect, with any necessary modifications, for that purpose.

(2) The reference in subsection (1) to Part VII of the Act of 1994 includes a reference to the Second Schedule to that Act.

(3) References in subsection (1) to a state include references to a country or territory within the meaning of the said Part VII.