Criminal Justice (Amendment) Act 2009

Amendment of sections 2, 4, 5 and 11 of Act of 1996.

22.— (1) Section 2 of the Act of 1996 is amended—

(a) in subsection (2)(b), by substituting ‘ superintendent’ for ‘ chief superintendent’ ,

(b) by inserting the following subsections after subsection (3):

“(3A) (a) Without prejudice to paragraph (b), where a judge hearing an application under subsection (2) is satisfied, in order to avoid a risk of prejudice to the investigation concerned, that it is desirable to do so, he or she may—

(i) direct that the application be heard otherwise than in public, or

(ii) exclude from the Court during the hearing all persons except officers of the Court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons as the Court may permit to remain.

(b) On the hearing of an application under subsection (2), the judge may, of his or her own motion or on application by the officer of the Garda Síochána making the application under subsection (2), where it appears that—

(i) particular evidence to be given by any member of the Garda Síochána during the hearing (including evidence by way of answer to a question asked of the member in cross-examination) concerns steps that have been, or may be taken, in the course of any inquiry or investigation being conducted by the Garda Síochána with respect to the suspected involvement of the person to whom the application relates, or any other person, in the commission of the offence to which the detention relates or any other offence, and

(ii) the nature of those steps is such that the giving of that evidence concerning them could prejudice, in a material respect, the proper conducting of any foregoing inquiry or investigation,

direct that, in the public interest, the particular evidence shall be given in the absence of every person, including the person to whom the application relates and any legal representative (whether of that person or the applicant), other than—

(I) the member or members whose attendance is necessary for the purpose of giving the evidence to the judge; and

(II) if the judge deems it appropriate, such one or more of the clerks or registrars of the Court as the judge determines.

(c) If, having heard such evidence given in that manner, the judge considers the disclosure of the matters to which that evidence relates would not have the effect referred to in paragraph (b)(ii), the judge shall direct the evidence to be re-given in the presence of all the other persons (or, as the case may be, those of them not otherwise excluded from the Court under paragraph (a)).

(d) No person shall publish or broadcast or cause to be published or broadcast any information about an application under subsection (2) other than a statement of—

(i) the fact that the application has been made by the Garda Síochána in relation to a particular investigation, and

(ii) any decision resulting from the application.

(e) If any matter is published or broadcast in contravention of paragraph (d), the following persons, namely—

(i) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,

(ii) in the case of any other publication, the person who publishes it, and

(iii) in the case of a broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper,

shall be guilty of an offence and shall be liable—

(I) on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

(II) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.

(f) Where an offence under this subsection has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(g) Where the affairs of a body corporate are managed by its members, paragraph (f) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(h) In this subsection—

‘ broadcast ’ means the transmission, relaying or distribution by wireless telegraphy, cable or the internet of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;

‘ publish ’ means publish, other than by way of broadcast, to the public or a portion of the public.

(3B) Save where any rule of law requires such an issue to be determined by the Court, in an application under subsection (2) no issue as to the lawfulness of the arrest or detention of the person to whom the application relates may be raised.

(3C) (a) In an application under subsection (2) it shall not be necessary for a member of the Garda Síochána, other than the officer making the application, to give oral evidence for the purposes of the application and the latter officer may testify in relation to any matter within the knowledge of another member of the Garda Síochána that is relevant to the application notwithstanding that it is not within the personal knowledge of the officer.

(b) However, the Court hearing such an application may, if it considers it be in the interests of justice to do so, direct that another member of the Garda Síochána give oral evidence and the Court may adjourn the hearing of the application for the purpose of receiving such evidence.”,

(c) by substituting the following subsection for subsection (7A):

“(7A) Notwithstanding subsections (2) and (7), if—

(a) an application is to be made, or is made, under subsection (2) for a warrant authorising the detention for a further period of a person detained under that subsection, and

(b) the period of detention under that subsection has not expired at the time of the arrival of the person concerned at the court house for the purposes of the hearing of the application but would, but for this subsection, expire before, or during the hearing (including, if such should occur, any adjournment of the hearing),

it shall be deemed not to expire until the final determination of the application; and, for purposes of this subsection—

(i) a certificate signed by the court clerk or registrar in attendance at the court house concerned stating the time of the arrival of the person concerned at that court house shall be evidence, until the contrary is shown, of the time of that person’s arrival there;

(ii) ‘ court house ’ includes any venue at which the hearing of the application takes place.”.

(2) Section 4 of the Act of 1996 is amended by substituting the following subsection for subsection (1):

“(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 2 and is released without any charge having been made against him or her, he or she shall not—

(a) be arrested again in connection with the offence to which the detention related, or

(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he or she was arrested suspected, or ought reasonably to have suspected, him or her of having committed,

except on the authority of a warrant issued by a judge of the Circuit Court or the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that either of the following cases apply, namely—

(i) further information has come to the knowledge of the Garda Síochána since the person’s release as to the person’s suspected participation in the offence for which his or her arrest is sought,

(ii) notwithstanding that the Garda Síochána had knowledge, prior to his or her release, of the person’s suspected participation in the offence for which his or her arrest is sought, the questioning of the person in relation to that offence, prior to his or her release, would not have been in the interests of the proper investigation of the offence.

(1A) An application for a warrant under this section shall be heard otherwise than in public.”.

(3) Section 5 of the Act of 1996 is amended by inserting “4(8B),” after “4(8A),”.

(4) Section 11 of the Act of 1996 is repealed and, accordingly, sections 2, 3, 4, 5 and 6 of that Act (being the sections to which that section 11 related) shall continue in operation indefinitely.