Criminal Justice (Miscellaneous Provisions) Act 2023
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Assistance in criminal matters between State and EPPO | ||
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52. The Act of 2008 is amended by the insertion of the following Part after Part 7A: | ||
“PART 7B | ||
Assistance in Criminal Matters between State and EPPO | ||
Chapter 1 | ||
General | ||
Application of Part | ||
94F. (1) This Part shall apply to the provision of assistance in criminal matters between the State and EPPO. | ||
(2) This Part shall apply to EPPO requests whether made before, on or after the coming into operation of section 52 of the Criminal Justice (Miscellaneous Provisions) Act 2023. | ||
(3) Where, before the coming into operation of section 52 of the Criminal Justice (Miscellaneous Provisions) Act 2023, EPPO has sought assistance from the State, the seeking of such assistance shall, for the purposes of this Part, be deemed— | ||
(a) to be an EPPO request, | ||
(b) to have been made in accordance with this Act, and | ||
(c) subject to subsection (4), to have been received by the State on the coming into operation of that section. | ||
(4) Where assistance referred to in subsection (3) involves— | ||
(a) the notification of the Minister as referred to in subsection (1)(d) of section 27, subsection (2) of that section shall apply as if ‘and at the latest within a period specified in subsection (7),’ was deleted, and | ||
(b) an external freezing order, section 35(3) shall apply as if ‘and, whenever practicable, within 24 hours of receipt of the order and a duly completed certificate’ was deleted. | ||
Cooperation with EPPO | ||
94G.(1) The State shall cooperate with EPPO in respect of EPPO requests. | ||
(2) An EPPO request and a request to EPPO by the State may be made under this Act, notwithstanding that such requests are not made in accordance with the provisions of an international instrument. | ||
(3) Where the State has received a request in accordance with a relevant international instrument from a member state that is a relevant EPPO member state, the Minister may, notwithstanding the purposes permitted by the relevant international instrument, permit the evidence and information obtained in the State in compliance with the request, to be shared by the member state with EPPO. | ||
(4) Where the State has received a request referred to in subsection (3), assistance shall not be refused solely on the ground that evidence or information regarding the request is to be provided by the State to EPPO. | ||
Modification of references for purposes of Part (general) | ||
94H. For the purposes of this Part a reference in this Act— | ||
(a) to a member state shall, subject to paragraph (b), unless the context otherwise requires, be construed as a reference to a relevant EPPO member state, | ||
(b) to a request from a member state shall be construed as a reference to an EPPO request, | ||
(c) to an assurance by a requesting authority shall, subject to section 94AG and paragraph (c) of section 94AQ, be construed as a reference to an assurance by— | ||
(i) EPPO, or | ||
(ii) the relevant EPPO member state in which EPPO is conducting a criminal investigation or criminal proceedings that are the subject of an EPPO request, | ||
(d) to an order, an interception order, a warrant or a document being issued, or made, by EPPO shall be construed as including a reference to an order, an interception order, a warrant or a document, as the case may be, being issued, or made, by the relevant EPPO member state on the request of EPPO, and | ||
(e) to the law of the designated state shall— | ||
(i) in section 15(2)(c)(iv), be construed as a reference to the law of the relevant EPPO member state, | ||
(ii) in section 17(3)(a), be construed as a reference to the law of the relevant EPPO member state, and | ||
(iii) in section 66(5), be construed as a reference to the law of the relevant EPPO member state. | ||
Chapter 2 | ||
Modification of Part 1 for purposes of Part | ||
Application of section 2 for purposes of Part | ||
94I. For the purposes of this Part, section 2(1) shall apply subject to the following and any other necessary modifications: | ||
(a) in the definition of ‘criminal conduct’, paragraph (b) shall be construed as if the following paragraph were substituted for that paragraph: | ||
‘(b) which occurs in a state (other than the State) and would, if it occurred in the State, constitute an offence;’, | ||
(b) in the definition of ‘criminal investigation’, paragraph (a) shall be construed as if the following paragraph were substituted for that paragraph: | ||
‘(a) means an investigation conducted by EPPO, and’, | ||
(c) the definition of ‘criminal proceedings’ shall apply as if paragraph (d) was deleted, | ||
(d) in the definition of ‘offence’— | ||
(i) paragraph (a) shall be construed as if the following paragraph were substituted for that paragraph: | ||
‘(a) means an offence in respect of which an EPPO request may be made,’, | ||
and | ||
(ii) in paragraph (b), as if ‘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,’ was deleted, | ||
and | ||
(e) in the definition of ‘requesting authority’— | ||
(i) paragraph (a) shall be construed as if the following paragraph were substituted for that paragraph: | ||
‘(a) EPPO, or’, | ||
and | ||
(ii) in paragraph (b), the reference to any other authority in that state shall be construed as a reference to any person. | ||
Application of section 3 for purposes of Part | ||
94J. For the purposes of this Part, section 3 shall apply subject to the following and any other necessary modifications— | ||
(a) as if paragraph (c) of subsection (1) was deleted, and | ||
(b) a reference in subsection (1) to specified in the relevant international instrument shall be construed as a reference to specified in or under this Act. | ||
Application of section 6 for purposes of Part | ||
94K. For the purposes of this Part, section 6 shall be construed as if the following section were substituted for that section: | ||
‘6. (1) Subject to the provisions of this Act concerning particular requests and such matters as may be provided for in Part 7B Regulations (if any), an EPPO request shall— | ||
(a) be addressed to the Central Authority, | ||
(b) be in writing or in any form capable of producing a written record under conditions allowing its authenticity to be established, and | ||
(c) if not in the Irish, or English, language, be accompanied by a translation into either of those languages. | ||
(2) The Minister may— | ||
(a) accept an EPPO request and any supporting or related documents as evidence of the matters mentioned in them unless he or she has information to the contrary, | ||
(b) seek such additional information from EPPO as may be necessary to enable a decision to be taken on an EPPO request, and | ||
(c) accept a request from EPPO and treat the request as an EPPO request notwithstanding that the request is expressed as a request made in accordance with a relevant international instrument. | ||
(3) Action on an EPPO request may be postponed by the Minister if the action would prejudice criminal proceedings or a criminal investigation. | ||
(4) Before refusing an EPPO request or postponing action on it, the Minister shall, where appropriate and having consulted EPPO, consider whether the request may be granted partially or subject to such conditions as he or she considers necessary. | ||
(5) Reasons shall be given for any such refusal or postponement. | ||
(6) The Minister shall inform EPPO of any circumstances that make it impossible to comply with an EPPO request or are likely to significantly delay compliance.’. | ||
Application of section 7 for purposes of Part | ||
94L. For the purposes of this Part, section 7 shall apply subject to the modification (and any other necessary modifications) that a reference in that section to the designated state concerned or the designated state shall be construed as a reference to EPPO. | ||
Application of section 8 for purposes of Part | ||
94M. For the purposes of this Part, section 8 shall apply subject to the modification that the reference in subsection (2) to the function of co-operating, in accordance with the relevant international instrument, with corresponding persons or bodies in designated states shall be construed as including a reference to co-operating with EPPO as referred to in section 94G(1). | ||
Application of section 9 for purposes of Part | ||
94N. For the purposes of this Part, section 9 shall apply subject to the following and any other necessary modifications— | ||
(a) a reference to— | ||
(i) a competent authority, and | ||
(ii) a competent authority in a designated state, | ||
shall be construed as a reference to EPPO, | ||
(b) in subsection (1), as if ‘in accordance with the relevant international instrument and’ was deleted, | ||
(c) as if subsections (3) and (5) were deleted, and | ||
(d) in subsection (4), as if the ‘pursuant to the relevant international instrument’ was deleted. | ||
Chapter 3 | ||
Modification of Part 2 for purposes of Part | ||
Application of section 14 for purposes of Part | ||
94O. For the purposes of this Part, section 14 shall apply subject to the following and any other necessary modifications— | ||
(a) in subsection (1), the reference to a competent authority in that state shall be construed as a reference to EPPO, | ||
(b) in subsection (2), the reference to a competent authority in a designated state shall be construed as a reference to EPPO, | ||
(c) in subsection (4), a reference— | ||
(i) to the competent authority shall be construed as a reference to EPPO, and | ||
(ii) to the relevant international instrument shall be construed as a reference to EPPO, | ||
and | ||
(d) in subsection (5), the reference to— | ||
(i) the competent authority, and | ||
(ii) the authority, | ||
shall be construed as a reference to EPPO. | ||
Application of section 17 for purposes of Part | ||
94P. For the purposes of this Part, section 17 shall apply (subject to the modification in section 94H(e)(ii) and any other necessary modifications) as if subsection (3)(c) was deleted. | ||
Application of section 20 for purposes of Part | ||
94Q. For the purposes of this Part, section 20 shall apply subject to the modification (and any other necessary modifications) that the reference in subsection (2) to the competent authority in the designated state concerned shall be construed as a reference to EPPO. | ||
Chapter 4 | ||
Modification of Part 3 for purposes of Part | ||
Application of section 24 for purposes of Part | ||
94R. For the purposes of this Part, section 24 shall apply subject to the following and any other necessary modifications— | ||
(a) in subsection (1)— | ||
(i) in paragraph (b), the reference to issued in the member state shall be construed as a reference to issued by EPPO, and | ||
(ii) in paragraph (c), a reference to a competent authority in a member state shall be construed as a reference to EPPO, | ||
(b) in subsection (1)(d)(i), the reference to the competent authority in the former member state shall be construed as a reference to EPPO, and | ||
(c) in subsection (2)— | ||
(i) as if paragraph (a) was deleted, and | ||
(ii) in paragraph (g), as if ‘pursuant to Article 20(2)(a) of the 2000 Convention’ was deleted. | ||
Application of section 25 for purposes of Part | ||
94S. For the purposes of this Part, section 25 shall apply subject to the following and any other necessary modifications— | ||
(a) in subsection (2)(b)(ii), the reference to the member state shall be construed as a reference to EPPO, | ||
(b) in subsection (3)(a), the reference to the requesting state shall be construed as a reference to the relevant EPPO member state, | ||
(c) in subsection (6), a reference to a competent authority in the member state shall be construed as a reference to EPPO, and | ||
(d) as if the following subsection were substituted for subsection (7): | ||
‘(7) In considering a request for a transcript of a recording to which this section applies, the Minister shall have regard to all the circumstances of the particular case, and may make the granting of such a request subject to any condition to which authorisation of the interception may be subject.’. | ||
Application of section 27 for purposes of Part | ||
94T. For the purposes of this Part, section 27 shall apply subject to the following and any other necessary modifications— | ||
(a) a reference to— | ||
(i) a competent authority, and | ||
(ii) a competent authority in a member state, | ||
shall be construed as a reference to EPPO, and | ||
(b) in subsection (1), as if the following paragraph were substituted for paragraph (d): | ||
‘(d) EPPO notifies the Minister accordingly.’. | ||
Application of section 28 for purposes of Part | ||
94U. For the purposes of this Part, section 28 shall apply subject to the modification (and any other necessary modifications) that the reference in subsection (3)(b) to issued in the member state shall be construed as a reference to issued by EPPO. | ||
Chapter 5 | ||
Modification of Part 4 for purposes of Part | ||
Modification of reference to competent authority | ||
94V. For the purposes of this Part, a reference in Part 4 to— | ||
(a) a competent authority in a designated state shall be construed as if ‘in a designated state’ was deleted, and | ||
(b) a competent judicial authority in the designated state, shall be construed as a reference to EPPO. | ||
Application of section 31 for purposes of Part | ||
94W. For the purposes of this Part, section 31 shall apply subject to the following and any other necessary modifications: | ||
(a) as if the following were substituted for the definition of ‘competent authority’: | ||
‘‘competent authority’ means EPPO;’, | ||
(b) in the definition of ‘external freezing order’, as if the following paragraph were substituted for paragraph (a): | ||
‘(a) taken provisionally by EPPO in criminal proceedings to prevent the destruction, transformation, moving, transfer, disposal or use of specified property in the State that could be subject to confiscation or be evidence in those proceedings, and’, | ||
and | ||
(c) as if the following were substituted for the definition of ‘issuing state’: | ||
‘‘issuing state’ means EPPO;’. | ||
Application of section 34 for purposes of Part | ||
94X. For the purposes of this Part, section 34 shall apply subject to the following and any other necessary modifications: | ||
(a) subsection (1) shall be construed as if the following were substituted for that subsection: | ||
‘(1) A request from EPPO for the enforcement of an external freezing order shall be accompanied by— | ||
(a) a duly certified copy of the order, and | ||
(b) a statement of the grounds for the making of the order.’, | ||
(b) as if subsection (2) was deleted, | ||
(c) subsection (3) shall apply as if the reference therein to subsection (2) was deleted, | ||
(d) in subsection (4), the reference to an issuing judicial authority shall be construed as a reference to EPPO, and | ||
(e) in subsection (5), the reference to— | ||
(i) the issuing judicial authority, and | ||
(ii) that judicial authority, | ||
shall be construed as a reference to EPPO. | ||
Application of section 35 for purposes of Part | ||
94Y. For the purposes of this Part, section 35 shall apply subject to the following and any other necessary modifications: | ||
(a) in subsection (2), as if ‘and, in the case of a designated state (other than a member state), shall be made with the consent of the Minister’ was deleted, | ||
(b) in subsection (3), the reference to a member state shall be construed as reference to EPPO, | ||
(c) as if subsection (6) was deleted, and | ||
(d) in subsection (7)(c), the reference to the issuing judicial authority shall be construed as a reference to EPPO. | ||
Application of section 42 for purposes of Part | ||
94Z. For the purposes of this Part, section 42(2) shall apply subject to the following and any other necessary modifications: | ||
(a) as if ‘subject to any provision to the contrary in the relevant international instrument,’ was deleted, and | ||
(b) the reference to the designated state concerned shall be construed as a reference to EPPO. | ||
Application of section 45 for purposes of Part | ||
94AA. For the purposes of this Part, section 45(5) shall apply subject to the modification (and any other modifications) that the reference to the issuing judicial authority shall be construed as a reference to EPPO. | ||
Application of section 46 for purposes of Part | ||
94AB. For the purposes of this Part, section 46 shall apply subject to the following and any other necessary modifications: | ||
(a) in subsection (1)— | ||
(i) as if paragraphs (a) and (b) were deleted, and | ||
(ii) in paragraph (d), as if ‘in a certificate’ was deleted, | ||
(b) as if subsection (2) was deleted, and | ||
(c) in subsection (3)— | ||
(i) the reference to— | ||
(I) the issuing judicial authority concerned, and | ||
(II) the judicial authority, | ||
shall be construed as a reference to EPPO, and | ||
(ii) in subparagraph (i), as if ‘in the certificate’ was deleted. | ||
Application of section 47 for purposes of Part | ||
94AC. For the purposes of this Part, section 47(4) shall apply subject to the modification (and any other modifications) that the reference to the issuing judicial authority shall be construed as a reference to EPPO. | ||
Chapter 6 | ||
Modification of Part 5 for purposes of Part | ||
Application of section 62 for purposes of Part | ||
94AD. For the purposes of this Part, section 62 shall apply subject to the following and any other necessary modifications— | ||
(a) the definition of ‘appropriate authority’ shall be construed as including the following paragraph after paragraph (a): | ||
‘(ab) EPPO, or’, | ||
and | ||
(b) subsection (6) shall be construed as if ‘permitted by the relevant international instrument or’ was deleted. | ||
Application of section 63 for purposes of Part | ||
94AE. For the purposes of this Part, section 63(3) shall apply as if (and with any other necessary modifications) ‘permitted by the relevant international instrument or’ was deleted. | ||
Application of section 64 for purposes of Part | ||
94AF. For the purposes of this Part, section 64(3) shall apply subject to the modification (and any other necessary modifications) that the reference to a court in the state concerned shall be construed as a reference to a court in the relevant EPPO member state. | ||
Application of section 66 for purposes of Part | ||
94AG. For the purposes of this Part, section 66(5) shall apply subject to the modification (and any other necessary modifications) that the reference to an assurance by a requesting authority shall be construed as a reference to an assurance by the relevant EPPO member state in which EPPO is conducting a criminal investigation or criminal proceedings that are the subject of an EPPO request. | ||
Application of section 67 for purposes of Part | ||
94AH. For the purposes of this Part, section 67 shall apply as if subsection (10) was deleted and subject to any other necessary modifications. | ||
Application of section 70 for purposes of Part | ||
94AI. For the purposes of this Part, section 70 shall apply subject to the following and any other necessary modifications— | ||
(a) in subsection (3), the reference to the requesting state shall be construed as a reference to the relevant EPPO member state, and | ||
(b) in subsection (6), the reference to a judge of the designated state shall be construed as a reference to a judge of the relevant EPPO member state. | ||
Application of section 73 for purposes of Part | ||
94AJ. For the purposes of this Part, section 73 shall apply subject to the following and any other necessary modifications— | ||
(a) the definition of ‘appropriate authority’ shall be construed as including the following paragraph after paragraph (a): | ||
‘(ab) EPPO, or’, | ||
(b) in subsection (1), as if ‘, in accordance with the relevant international instrument,’ was deleted, and | ||
(c) in subsection (6), as if ‘permitted by the relevant international instrument or’ was deleted. | ||
Application of section 74 for purposes of Part | ||
94AK. For the purposes of this Part, section 74 shall apply subject to the following and any other necessary modifications— | ||
(a) as if subsection (3) was deleted, and | ||
(b) in subsection (5)(a), as if ‘permitted by the relevant international instrument or’ was deleted. | ||
Application of section 75 for purposes of Part | ||
94AL. For the purposes of this Part, section 75 shall apply subject to the following and any other necessary modifications— | ||
(a) as if subsection (3) was deleted, | ||
(b) in subsection (4), a reference to that state shall be construed as a reference to the relevant EPPO member state, and | ||
(c) in subsection (6)(a), as if ‘permitted by the relevant international instrument or’ was deleted. | ||
Application of section 78 for purposes of Part | ||
94AM. For the purposes of this Part, section 78 shall apply subject to the following (and any other necessary) modification, as if the following paragraph were substituted for paragraph (e) of subsection (1): | ||
‘(e) in the case of an EPPO request for the DNA profile of a person who is suspected of having committed the offence concerned whose DNA profile is not in the possession of the Garda Síochána— | ||
(i) a warrant or order issued by EPPO or by an appropriate authority in the relevant EPPO member state on the request of EPPO requiring a person to have identification evidence, other than fingerprints, palm prints or photographs, taken from him or her for the purposes of a criminal investigation, or criminal proceedings, in that member state, or | ||
(ii) a statement issued by EPPO or by an appropriate authority in the relevant EPPO member state on the request of EPPO confirming that the requirements for the taking of a DNA sample from the person under the law of the relevant EPPO member state would be complied with if the person were in that state.’. | ||
Application of section 79 for purposes of Part | ||
94AN. For the purposes of this Part, section 79 shall apply subject to the modification (and any other necessary modifications) that the reference in subsection (10) to the requesting state shall be construed as a reference to the relevant EPPO member state. | ||
Application of section 79A for purposes of Part | ||
94AO. For the purposes of this Part, section 79A shall apply subject to the following (and any other necessary) modification, as if the following were substituted for paragraph (a) of subsection (1): | ||
‘(a) is an EPPO request, and’. | ||
Application of section 79C for purposes of Part | ||
94AP. For the purposes of this Part, section 79C shall apply subject to the following and any other necessary modifications: | ||
(a) a reference to a request made pursuant to Article 7 of 2008 Council Decision or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway designated state shall be construed as a reference to an EPPO request, | ||
(b) in subsection (2), as if paragraph (d) was deleted, and | ||
(c) as if subsection (8) was deleted. | ||
Chapter 7 | ||
Modification of Part 6 for purposes of Part | ||
Application of section 82 for purposes of Part | ||
94AQ. For the purposes of this Part, section 82 shall apply subject to the following and any other necessary modifications— | ||
(a) in subsection (1)(b), the reference to a prosecuting authority shall be construed as including a reference to EPPO, | ||
(b) a reference to issuing authority shall be construed as a reference to EPPO, | ||
(c) in subsections (8) and (9), the reference to that state shall be construed as a reference to the relevant EPPO member state, | ||
(d) in subsection (10)(a), the reference to judicial authorities shall be construed as including EPPO, and | ||
(e) in subsection (11)(b), the reference to law of the state where it was issued shall be construed as a reference to the law of the relevant EPPO member state. | ||
Application of section 83 for purposes of Part | ||
94AR. For the purposes of this Part, section 83 shall apply subject to the modification (and any other necessary modifications) that a reference in subsection (1) to— | ||
(a) the appropriate authority in the designated state, and | ||
(b) that authority, | ||
shall be construed as a reference to EPPO. | ||
Application of section 88 for purposes of Part | ||
94AS. For the purposes of this Part, section 88 shall apply subject to the following and any other necessary modifications— | ||
(a) in the definition of ‘competent authority in a designated state’, the reference to a person or body in that state appearing to the Competent Authority in the State to have the function of receiving or making the request shall be construed as reference to EPPO, and | ||
(b) in the definition of ‘controlled delivery’, as if ‘in accordance with the relevant international instrument’ was deleted. | ||
Chapter 8 | ||
Modification of Part 8 for purposes of Part | ||
Application of section 97 for purposes of Part | ||
94AT. For the purposes of this Part, section 97 shall apply subject to the following and any other necessary modifications, the reference in subsection (1) to— | ||
(a) the designated state concerned, and | ||
(b) a representative of the authority concerned in that state, | ||
shall be construed as a reference to EPPO. | ||
Application of section 99 for purposes of Part | ||
94AU. For the purposes of this Part, section 99 shall apply subject to the modification (and any other necessary modifications) that the reference to in accordance with the relevant international instrument shall be construed as a reference to with the consent of EPPO. | ||
Application of section 102 for purposes of Part | ||
94AV. For the purposes of this Part, section 102 shall apply subject to the following and any other necessary modifications— | ||
(a) in subsection (1)(a)(ii), the reference to made or issued by a court, tribunal or authority in a designated state shall be construed as including a reference to made or issued by EPPO, | ||
(b) in subsection (4), the reference to certified by or on behalf of the court, tribunal or authority issuing it shall be construed as including a reference to certified by or on behalf of EPPO, | ||
(c) in subsection (5)— | ||
(i) in paragraph (a), the reference to given by or on behalf of a court, tribunal or authority in a designated state shall be construed as including a reference to given by or on behalf of EPPO, | ||
(ii) as if paragraph (b) was deleted, and | ||
(iii) the reference to such a certificate or seal shall be construed as a reference to such certificate, | ||
and | ||
(d) as if subsection (6) was deleted. | ||
Application of section 103 for purposes of Part | ||
94AW. For the purposes of this Part, section 103 shall apply subject to the following and any other necessary modifications— | ||
(a) the reference to a competent authority in that state shall be construed as a reference to EPPO, | ||
(b) in subsection (1)— | ||
(i) as if ‘in accordance with the relevant international instrument’ was deleted, and | ||
(ii) as if ‘within the meaning of that instrument’ was deleted, | ||
and | ||
(c) in subsection (3), as if ‘having had regard to the provisions of the relevant international instrument’ was deleted. | ||
Application of section 104 for purposes of Part | ||
94AX. For the purposes of this Part, section 104 shall apply (subject to any other necessary modifications) as if ‘, and shall if so required by the relevant international instrument,’ in subsection (1) was deleted.”. |