Will the Minister outline why we are faced with discussing such a wadge of amendments, the list of which is almost as large as the Bill? In my view he should indicate, for the record, why matters have reached this point.
Criminal Justice (Mutual Assistance) Bill 2005 [Seanad]: Committee Stage.
SECTION 1.
Question proposed: "That section 1 stand part of the Bill."
I accept as a general principle that it is preferable not to bring forward large numbers of amendments to Bills. However, it is unavoidable in this case. I would have considered republishing the Bill - which passed all Stages in the Seanad - despite the delay this would cause were it not essential, for a number of reasons, that it be enacted as quickly as possible. For the assistance of members, I arranged for transmission to the clerk to the committee of a copy of what might be described as the Bill as envisaged.
Ireland is in a small minority of EU member states that have not transposed a number of the instruments to which this Bill gives effect. In light of the fact that two of the instruments are overdue for transposition since December 2004 - one since August 2005 and one since June 2006 - it is crucial that the Bill be progressed without any further delay.
As has already been explained to Deputies, the majority of the amendments now proposed for inclusion in the Bill give effect to the mutual assistance provisions in five additional international instruments, as follows: the UN Convention against Corruption; the UN Convention against Transnational Organised Crime; the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism; the 2005 Council Decision on the Exchange of Information and Co-operation Concerning Terrorist Offences; and the co-operation agreement between the European Union and its member states, on one hand, and the Swiss Confederation, on the other, to combat fraud and any other illegal activity to the detriment of their financial interests. These instruments contain provisions relating to mutual legal assistance and it makes eminent sense to include them in the Bill in order that as many mutual legal assistance provisions as possible are gathered together in a single item of legislation. The legal advice received from the Attorney General regarding the transposition requirements of these instruments was received after publication of the Bill. In the case of the UN Convention against Corruption, advice was received in December 2005 and April 2006. In the case of the UN Convention against Transnational Organised Crime, advice was received in August 2007.
It was impossible to introduce any of the necessary amendments during the Bill's passage through the Seanad due to the particularly heavy legislative workload of the Parliamentary Counsel at the time. I am remedying that situation by introducing the amendments here. Deputies should also be aware that many of these amendments were developed since Second Stage concluded in September 2006.
The alternative to this approach would be to bring these legislative changes forward in a separate item of legislation. Not only would such an approach make the legislation in the area of mutual legal assistance more opaque from the point of view of the practitioner and less accessible to the public, it would also result in more Dáil time being taken up on the matter and doubtless repetition of many of the topics already being discussed in the context of the Bill. I do not see any requirement to unnecessarily increase the workload of the Houses and I intend to take the approach I have outlined. Were I to put the relevant measures in a separate item of legislation, I would undoubtedly be criticised for not having the foresight and efficiency to ensure that all mutual legal assistance measures were included in one item of law for ease of use. This is what I am now striving to do.
Including these instruments meant that amendments had to be drafted to ensure that the provisions of the Bill relating to information regarding financial transactions and freezing orders applied to designated states rather than member states. Provision is also made for foreign officers to examine objects and sites under the supervision of a garda. There are also a significant number of technical amendments required on foot of the inclusion of the additional instruments.
A number of amendments deal with District Court jurisdiction and arise due to the finding of the Supreme Court in October 2006 in the Dylan Creaven Silicon Technologies v. CAB case that in order for a search warrant to be valid it must be issued while the District Court judge is physically in the district to which he or she is assigned. The Criminal Justice Act 2006 addressed this jurisdictional issue and it is important that the provisions included in the Bill in respect of this area be aligned with those contained in that Act. This could not be done until the Criminal Justice Act 2006 was finalised, and a number of amendments I am bringing forward here are simply aligning these provisions.
Other amendments brought forward address, for example, points arising from earlier debates on the Bill. A small number of amendments relate to the issue of the designation of states and attempts to ensure that the designation of states is based on ascertainable fact rather than allowing for a degree of flexibility in the matter. The lack of guiding criteria was criticised by Deputies during the debate on Second Stage and I am attempting to address this now.
I am sure Deputies would not wish to see me ignore valid points they make on the basis that the number of amendments should be kept down. I take the view that if amendments are necessary to improve legislation the number of amendments made should not be an issue. The important point is to put complete, workable and sensible legislation in place. While I accept that the number of amendments does at first glance seem large, their effect is not as drastic as might be supposed. Most of them, as I have noted, extend the provisions of the Bill to incorporate the additional instruments I have mentioned and many are, in fact, repetitive, as particular terms need to be amended in various parts of the Bill. Other amendments merely create legislative alignment or tidy up technical issues and should not give cause for alarm.
I thank the Minister for that explanation. It would, inevitably, involve delay if we were to start ab initio. However, there is an exceptional number of amendments and the record should show what has motivated that.
Question put and agreed to.
SECTION 2.
Amendments Nos. 1 to 22, inclusive, 40, 42 and 56 are related and may be discussed together.
I move amendment No. 1:
In page 10, subsection (1), lines 32 and 33, to delete "and Second Additional Protocol of 8 November 2001".
These amendments relate to the interpretation, clarification and definition of terms. Most of them relate to the interpretation provisions in section 2. Amendments Nos. 40 and 42 relate to definitions in Part 2.
Amendment No. 40 was proposed by Deputy Rabbitte. It amends the definition of "account" in Part 2 and was originally raised in the Seanad. My predecessor indicated during the debate on Report Stage in that House that the amendment would have the effect of broadening the definition of "account" and, having consulted the relevant parties, he was of the view that the proposed amendment would place too heavy a burden on the banks and would render the provision, in effect, inoperable. I note that the Labour Party has altered the amendment to include a provision referring to "without undue difficulty" for the financial institution concerned. Nevertheless, I do not propose to accept it.
What is being sought here goes beyond what is covered by the terms of the protocol to the 2000 EU convention to which we are giving effect in this part of the Bill. The Garda Síochána is of the view that the proposed amendment would have the effect of complicating the section. In drafting an order under the proposed paragraph (f) of section 11(1), it would be necessary to prove in a sworn statement before the court the grounds for belief that one person is holding an account on behalf of another person. Their view is that paragraph (e) of the definition of account, which refers to any other account held by another person, already provides an adequate mechanism to obtain details of accounts held by third parties on behalf of suspected parties. For that reason, I am not disposed to accept amendment No. 40.
I am disappointed by the Minister's response. We sought to meet the objection made by the Minister in the Seanad, which was that the amendment would impose an unreasonable burden on the bank. We sought to meet that objection by making the point that the account should be identified by the financial institution "without undue difficulty".
The purpose of the amendment is to deal with a situation which I am advised is, if not de rigeur, certainly common, whereby money is placed in an account on behalf of the suspect concerned. The money could be in his girlfriend’s or relative’s account or whatever. We ought to provide for that situation. The amendment is drafted with a view to dealing with circumstances in which another person holds money on behalf of the accused. I would have thought the saving grace of an account that can be identified by a bank without undue difficulty provides for the concern expressed by the Minister in the Seanad. The rationale behind the alteration to the amendment is to make it more effective and provide for the situation where a suspect can cause money to be deposited in a bank in another person’s name.
I do not wish to cut across the question raised by my colleague, Deputy Rabbitte. However, we are discussing up to 26 amendments together. In amendment No. 11, for example, I take it we are not re-inventing the wheel, that there are sources for these definitions and that we are, in effect, transposing legal terminology. I take it these terms are not now being defined by the Department for the first time. On that presumption, I do not have any difficulty in accepting the ministerial amendments, assuming they have been tried and tested in other fora.
The example cited by Deputy Flanagan is of definitions of the word "place" inserted by amendment No. 11. There was an existing definition of "place" but it is important that the definition now extends beyond the European Union to cover the Swiss Confederation. Given that the Swiss Confederation, under a subsequent agreement, has come into the European Union for this purpose, it is important that the reference is included.
Deputy Rabbitte's point is understandable and has substance, and was raised during the debate on Committee Stage in the Seanad. The existing paragraph 11(1)(e) provides that “account” does include any other account held by another person where information related to it would be relevant to the investigation referred to in the request. The Garda view is that provision defining an account already provides an adequate mechanism to obtain details of accounts held by third parties on behalf of suspected parties. I take it that is the net issue which Deputy Rabbitte is seeking to ensure is addressed in the legislation. Hence, to put in a provision for “undue difficulty” would, if anything, further complicate the section.
I am willing to revisit the issue with the Attorney General before Report Stage but the advice from the Garda is that the existing paragraph 11(1)(e) is sufficient to cover the circumstances outlined by Deputy Rabbitte.
I will have a look at what the Minister has said before Report Stage. Amendment No. 40 would be inserted immediately after paragraph 11(1)(e), to which the Minister refers. My amendment is clearer than what is stated in paragraph (e).
Amendment agreed to.
I move amendment No. 2:
In page 10, subsection (1), lines 36 and 37, to insert the following:
" "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;".
Amendment agreed to.
I move amendment No. 3:
In page 10, subsection (1), after line 40, to insert the following:
" "2005 Council Decision" means Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and co-operation concerning terrorist offences;".
Amendment agreed to.
I move amendment No. 4:
In page 11, subsection (1), to delete lines 1 to 3 and substitute the following:
" "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;”.
Amendment agreed to.
I move amendment No. 5:
In page 12, subsection (1), line 6, after "section 4 ” to insert the following:
"or under Part VII of the Act of 1994 immediately before the commencement of section 10(a)”.
Amendment agreed to.
I move amendment No. 6:
In page 12, subsection (1), between lines 6 and 7, to insert the following:
" "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;".
Amendment agreed to.
I move amendment No. 7:
In page 12, subsection (1), between lines 16 and 17, to insert the following:
" "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;”.
Amendment agreed to.
I move amendment No. 8:
In page 12, subsection (1), line 21, after "51" to insert "of the Schengen Convention".
Amendment agreed to.
I move amendment No. 9:
In page 12, subsection (1), to delete lines 26 to 38 and substitute the following:
" "offence", subject to subsection (2) of section 60-
(a) means an offence in respect of which a request for mutual assistance may be made under the relevant international instrument,”.
Amendment agreed to.
I move amendment No. 10:
In page 12, subsection (1), line 40, after "instrument" to insert "or the law of the designated state concerned".
Amendment agreed to.
I move amendment No. 11:
In page 12, subsection (1), between lines 42 and 43, to insert the following:
" "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;”.
Amendment agreed to.
I move amendment No. 12:
In page 13, subsection (1), lines 2 and 3, to delete "a member state or other designated state" and substitute "another state".
Amendment agreed to.
I move amendment No. 13:
In page 13, subsection (1), line 6, after "Minister" to insert "(other than a Garda Síochána station)".
Amendment agreed to.
I move amendment No. 14:
In page 13, subsection (1), line 8, after "1970," to insert "and".
Amendment agreed to.
I move amendment No. 15:
In page 13, subsection (1), lines 9 to 13, to delete all words from and including "1972," in line 9 down to and including "2001;" in line 13 and substitute "1972;".
Amendment agreed to.
I move amendment No. 16:
In page 13, subsection (1), to delete lines 23 to 31 and substitute the following:
" "relevant international instrument" means the international instrument in accordance with which a request for assistance is made;".
Amendment agreed to.
I move amendment No. 17:
In page 14, subsection (1), between lines 18 and 19, to insert the following:
" "Second Additional Protocol" means the Second Additional Protocol of 8 November 2001 to the 1959 Convention;".
Amendment agreed to.
I move amendment No. 18:
In page 14, subsection (1), line 23, after "applies" to insert the following:
"or whose law provides for mutual assistance in criminal matters".
Amendment agreed to.
I move amendment No. 19:
In page 14, lines 38 to 40, to delete subsection (4).
Amendment agreed to.
I move amendment No. 20:
In page 15, subsection (7), lines 12 to 17, to delete paragraphs (d) to (f) and substitute the following:
"(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 Second Additional Protocol to the 1959 Convention,
(i) Schedule 9 sets out the English text of Chapter IV of the 2005 Convention,
(j) Schedule 10 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,
(k) Schedule 11 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,”.
Amendment agreed to.
I move amendment No. 21:
In page 15, subsection (7)(h), line 25, to delete “8” and substitute “18”.
Amendment agreed to.
I move amendment No. 22:
In page 15, lines 29 to 37, to delete subsection (8).
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
Amendments Nos. 23 to 25, inclusive, are related and will be discussed together.
I move amendment No. 23:
In page 16, subsection (1)(b)(ii)(I), lines 7 to 11, to delete all words from and including “reasons,” in line 7 down to and including “Rights,” in line 11 and substitute the following:
"reasons, or
(II) may result in the person being subjected to torture or to any other contravention of the European Convention on Human Rights,".
These are technical amendments to section 3 setting out the circumstances in which mutual legal assistance may be refused. This is, essentially, an attempt to improve the running of the text.
Amendment agreed to.
I move amendment No. 24:
In page 16, subsection (1), line 12, to delete "or" and substitute the following:
"(c) if the request is not in accordance with the relevant international instrument, or”.
Amendment agreed to.
I move amendment No. 25:
In page 16, subsection (1)(c), line 15, to delete “State.” and substitute the following:
"State,
and may be refused on any other ground of refusal of assistance specified in the relevant international instrument.".
Amendment agreed to.
Section 3, as amended, agreed to.
NEW SECTION.
Acceptance of amendment No. 26 involves the deletion of section 4 of the Bill.
I move amendment No. 26:
In page 16, before section 4, to insert the following new section:
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.".
This amendment seeks the insertion of a New Section 4 into the Bill. This section deals with the designation of states and provides for the Minister for Foreign Affairs to designate a State by order for the purpose of providing mutual assistance under the relevant international instrument.
Deputies expressed concerns on Second Stage about the designation process as it currently stands in the Bill and pointed out that no criteria for designation were set out and, that there were no guiding principles. This amendment attempts to address these concerns by inserting into the Bill a New Section that limits designation to countries that are parties to relevant international instruments including those States with whom we have concluded bilateral agreements. A similar approach was taken by way of precedent in section 5 of the Transfer of Execution of Sentences Act 2005.
Amendment agreed to.
Section 4 deleted.
Section 5 agreed to.
SECTION 6.
Amendments Nos. 27 to 30, inclusive, are related and will be discussed together.
I move amendment No. 27:
In page 16, subsection (1), between lines 42 and 43, to insert the following:
"(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,”.
This amendment ensures that absolute clarity is provided in respect of requests being dealt with in accordance with the terms of the particular instrument under which they are made. Amendment No. 28 attempts to clarify that requests received before the date on which the Act comes into the effect shall be dealt with under pre-existing procedures. Amendment No. 29 provides that a request must, where appropriate, include an indication to which international instrument it refers. Amendment No. 30 provides for the translation, where appropriate, of requests and supporting documentation.
Amendment agreed to.
I move amendment No. 28:
In page 17, between lines 8 and 9, to insert the following subsection:
"(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.".
Amendment agreed to.
I move amendment No. 29:
In page 17, subsection (3)(a), line 11, to delete “and” and substitute the following:
"(b) where appropriate, indicate the relevant international instrument under which the request is being made, and”.
Amendment agreed to.
I move amendment No. 30:
In page 17, subsection (4), line 19, after "state" to insert the following:
", unless it is known that such a translation is not required by the appropriate authority in the designated state concerned".
Amendment agreed to.
Section 6, as amended, agreed to.
SECTION 7.
Amendments Nos. 31 and 33 to 38, inclusive, are related and will be discussed together.
I move amendment No. 31:
In page 17, subsection (2), line 47, after "Síochána" to insert "or officer of the Revenue Commissioners".
These amendments are proposed following discussions with the Revenue Commissioners. They extend the provisions of sections 7 and 9 in respect of the provision of certificates governing evidence and the communication of spontaneous information to include the fact that such actions may, where appropriate, be carried out by officers of the Revenue Commissioners, the Garda Síochána and the Director of Public Prosecutions.
The effect of amendment No. 31 is to provide that any certificate, affidavit or verifying document required in response to a request from another state can be supplied by an officer of the Revenue Commissioners. If the offence concerned is revenue related then obviously officers from the Revenue Commissioners are in a better position to supply the required verification than are the existing designated parties, namely, judges or members of the Garda Síochána.
Amendment No. 33 includes the Revenue Commissioners in the list of authorities that can exchange information with other states spontaneously and ensures that the Revenue Commissioners are providing authority for the purposes of this Bill. Amendments Nos. 34, 36 and 38 are consequential to this and adapt references to include the Revenue Commissioners. Amendments Nos. 35 and 37 are technical amendments which are necessary given the provisions in respect of the spontaneous exchange of information contained in some of the additional instruments being given effect through this Bill.
It is my understanding that these amendments were drafted following consultations with the Revenue Commissioners. I welcome these important amendments.
The Revenue Commissioners were anxious to have these powers on the basis of their being placed to provide the documents thereby reducing unnecessary delays under the legislation. The Revenue Commissioners will not now have to transmit documents through the Garda Síochána or a member of the Judiciary.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
I move amendment No. 32:
In page 18, subsection (2), line 12, after "Part 3 ” to insert the following:
", and of cooperating, in accordance with the relevant international instrument, with corresponding persons or bodies in designated states in relation to requests received from them".
This amendment seeks to clarify the role of the central authority which not alone receives, transmits and deals with requests but co-operates in respect of requests with the corresponding authority in other states. There was a danger that under the original provision the central authority could construe its functions in a limited manner. This provision is intended to facilitate contact or co-operation between official authorities in respect of mutual assistance requests.
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
I move amendment No. 33:
In page 18, lines 25 to 30, to delete subsection (1) and substitute the following:
"9. - (1) Without prejudice to section (81), 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.”.
Amendment agreed to.
I move amendment No. 34:
In page 18, subsection (2), line 31, to delete "Director or Commissioner" and substitute "providing authority".
Amendment agreed to.
I move amendment No. 35:
In page 18, subsection (3), line 35, to delete "the said Article 11" and substitute "Article 11 of the Second Protocol".
Amendment agreed to.
I move amendment No. 36:
In page 18, subsection (4), line 41, to delete "Director or Commissioner" and substitute "providing authority".
Amendment agreed to.
I move amendment No. 37:
In page 18, subsection (4), line 42, to delete "said Article 7 or 11" and substitute "relevant international instrument".
Amendment agreed to.
I move amendment No. 38:
In page 18, subsection (5), line 45, to delete "Director or Commissioner" and substitute "providing authority".
Amendment agreed to.
Section 9, as amended, agreed to.
Section 10 agreed to.
SECTION 11.
Amendments Nos. 39, 41, 45, 49 to 52, inclusive, 54, 55, 57, 61, 67 and 79 to 83, inclusive, are related. Amendments Nos. 79 and 80 are technical alternatives. All of these amendments will be discussed together. If the question on amendment No. 79 is agreed, amendment No. 80 cannot be moved. These amendments address the same part of the Bill and must be discussed together. Otherwise, amendment No. 80 would fall within the decision of amendment No. 79 and would not have any opportunity to be debated.
I move amendment No. 39:
In page 19, subsection (1), line 16, to delete "member" and substitute "designated".
The bulk of these amendments are technical in character. Although this is a large number of amendments to deal with together, all, with the exception of amendments Nos. 79 and 80, do the same thing. The purpose of the majority of the amendments is to widen the provision in Part 2 of the Bill, which deals with information about financial transactions for criminal investigation purposes to designated states. As the text currently stands, the co-operation is limited to EU member states. This change is necessary to facilitate the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, which can include states other than EU states. Therefore, the phrase "designated state" is required to be used.
Amendments Nos. 81, 82 and 83 make a similar adaptation to the references dealing with freezing orders so that such orders can apply to Council of Europe states that are not EU member states. Amendment No. 79 is for clarification and inserts a new subsection (4) into section 31, dealing with legal privilege.
The effect of Deputy Rabbitte's proposed amendment No. 80 would be to delete the provision that an order for the freezing of evidence would have the effect as if it were an order of the High Court. The legal advice received on this matter is that it is an important provision for such an order to have an effect as if it were an order of the relevant court, as this means it would be an offence not to comply with the order and that a sanction could be applied. In addition, it would not be appropriate that such powers be granted to an individual judge without the backing of the court. The order must be made by the court and the wording as it stands emphasises the judicial nature of the function and ensures the judge concerned is acting judicially when such an order is made.
I note the amendment and the change the Minister has introduced in amendment No. 79. However, I still have some difficulty in understanding the thinking on the issue. The Minister wants us to treat the order as if it were an order of the High Court, but it is an order of the High Court. I am not sure I understand the point. This is something that appears elsewhere in the Bill, which has made it additionally confusing, given that the District Court had jurisdiction when we started out on the Bill. It was changed to the High Court in the amended Bill as it came through the Seanad, but I do not understand the logic of requiring that it be stated that an order under this section should be treated "as if it were an order of the High Court". It is an order of the High Court.
It is the legal advice received. I am inclined to take another look at the matter because it seems a peculiar formulation to say that an order has effect for all purposes as if it were an order of the High Court when it is being made by a person who is a judge of the High Court, with the full jurisdiction that implies under the Constitution. I will revisit the issue and check the legal advice.
I would be obliged if the Minister would do so. It would add to my education, because I do not understand it.
And mine.
It is an order of the High Court and I do not understand why it is necessary to provide expressly in the Bill that it ought to be treated as such.
The practice is that when an order is made by the High Court, the order is headed the High Court before the appropriate named judge. Therefore, the order would bear the legend, the High Court, on its face. I fail to see why it would not be the High Court unless that is necessary for the purpose of our compliance with an international obligation. I will have the matter checked.
Section 24 of the 1994 Act might shed some light on it. It will help if the Minister gets back to us with some clarification.
Amendment agreed to.
I move amendment No. 40:
In page 19, subsection (1)(e), line 31, to delete “request;” and substitute the following:
"request, and
(f) an account that can be identified by a financial institution without undue difficulty as an account held by another person in any other circumstances on behalf of, or representing in whole or in part the property of, the first-mentioned person;”.
We dealt with this already.
Amendment, by leave, withdrawn.
I move amendment No. 41:
In page 20, subsection (1), line 32, to delete "member" and substitute "designated".
Amendment agreed to.
I move amendment No. 42:
In page 20, subsection (1), to delete lines 42 to 47 and in page 21, to delete lines 1 to 24.
Amendment agreed to.
Section 11, as amended, agreed to.
SECTION 12.
Amendments Nos. 43, 46, 47, 58, 59, 63, 64 and 66 are related. Amendments Nos. 46 and 47 are technical alternatives. Amendments Nos. 63 and 64 are also technical alternatives. All of these amendments will be discussed together. If the question on amendment No. 46 is agreed, amendment No. 47 cannot be moved. If the question on amendment No. 63 is agreed, amendment No. 64 cannot be moved. These amendments are addressed to the same part of the Bill and must be discussed together. Otherwise, amendment No. 47 would fall with the decision on amendment No. 46 and amendment No. 64 would fall with the decision on amendment No. 63 and amendments Nos. 47 and 64 would not have any opportunity to be debated.
I move amendment No. 43:
In page 22, subsection (1), line 29, to delete "District Court" and substitute "High Court".
The amendments in this group in the name of Deputy Rabbitte, amendments Nos. 46 and 63, raise the same issue--
While they are being discussed together, they will not be put together.
They are being discussed together. They involve the same issue that Deputy Rabbitte raised in the preceding section. He wanted to know why there is a need to include an express reference to the High Court. I have already undertaken to revisit that matter and I am anxious to do so.
An intriguing additional conundrum arises in this instance. Why is it proposed that an order of the High Court should be treated as if it were an order of the District Court?
I will come to that. That proposal is contained in my amendments. It is a different issue. I would like to comment first on the amendments tabled by Deputy Rabbitte. The purpose of my amendments is to ensure that applications for account information and monitoring orders will have to be made in the High Court. The Bill as it stands specifies that such applications should be made to the District Court, but concerns were raised during discussions with the Office of the Chief Parliamentary Counsel that this might not result in all relevant information being encompassed by the order. This might occur if a person held accounts in different parts of the country, albeit with the same bank, or if - in this age of computerisation - records relating to an account were held at a different location to where the account was nominally held. In such cases, the District Court might not have the power, as a court of local jurisdiction, to ensure that all relevant information is caught by an order. If we amend "the court concerned" so that it reads "the High Court", we will remove the potential difficulty in that regard.
In addition, the Supreme Court decision in Dylan Creaven Silicon Technologies (Europe) Limited v. Criminal Assets Bureau raised issues relating to the jurisdiction of the District Court. The case related to the validity of a search warrant issued under the Criminal Assets Bureau Act 1996. The Supreme Court found that for a warrant to be valid, it must be issued by a District Court judge who is physically in the district to which he or she is assigned. While that judgment is indirectly related to these provisions, I am concerned about its implications. It is possible that questions about the jurisdiction of the District Court could arise in the case of account monitoring and information orders. If we amend “the court concerned” so that it reads “the High Court”, we will remove any potential ambiguity in that regard.
I have already dealt with amendments Nos. 46 and 63, which were tabled by Deputy Rabbitte. I share his fascination with elucidating a reply on this subject.
Perhaps enlightenment will come between now and Report Stage.
The Minister's amendments will place an additional burden on the High Court. We should ensure that matters can be dealt with in a more straightforward and standardised manner. The procedures should be less cumbersome. It seems to me that to vest the entire process in the High Court would be to take the easy way out. It would run contrary to my view, which is that if matters are to be streamlined, they should involve the jurisdiction of the District Court as far as possible, on the basis of accessibility.
I appreciate what the Minister has said. I assume the Attorney General has a view on this matter. I hope all avenues were explored - the possibility of taking it out of the District Court cannot have been the first option to be considered - as potential difficulties might have been eradicated by using a different formula. I understand the Minister's position on this issue. If he convinces me that the High Court is the best place to deal with this matter, I will bow to his knowledge of these matters.
What considerations brought about the change from the point where the Bill started to the point we have reached now?
Does the Deputy refer to the transfer from the District Court to the High Court?
Yes.
The net issue is that under the Constitution, both the District Court and the Circuit Court are courts of local and limited jurisdiction. In general, the judge assigned to the district, in the case of the District Court, or the circuit, in the case of the Circuit Court, exercises jurisdiction over matters in that district or circuit. The Supreme Court went a step further in respect of litigation connected with the Criminal Assets Bureau - it ruled not only that judges must be assigned to a particular district or circuit when making an order, but also that they must be physically present in the district or circuit when exercising such a function under the Criminal Assets Bureau Act 1996.
The constitutional limitation being placed on the jurisdiction of these courts is a matter to which we will return. It will lead to difficulties in the development of specialised jurisdictions in the District and Circuit Courts. For example, it will mean that a given judge will be assigned for all purposes to a particular district. One cannot put in place a District Court with national jurisdiction to deal with a specialised subject. The same can be said in the case of the Circuit Court. The High Court is constitutionally required to be the only court that is invested with full original jurisdiction to deal with all matters and controversies of fact, civil or criminal. It means that if there is any question of a bank account being located in a number of different districts, the High Court is the only court with the power to make an order in respect of such matters. When one has a bank account in different districts, a debtor-creditor relationship arises in those districts. Questions could be asked about whether the District Court order was sufficient to capture the debtor-creditor relationship outside the relevant district of the District Court.
The Minister has given us a persuasive explanation that is based on common sense. I recognise the sagacity that underpins it. The problem I have with it is that it did not tell me why we started with the District Court. The constitutional restraint that applies to the jurisdiction of the District Court and the Circuit Court, which was mentioned by the Minister, must have been in the minds of the authors of this legislation. Was it considered more convenient or more speedy to go to the District Court to get an order and get on with one's business?
Yes. The District Court traditionally tends to deal with a large percentage of the applications for search warrants, etc., which are unilateral in character. That is characteristic of the traditional jurisdiction of the District Court.
Are we talking about applications which are, by definition, predominantly ex parte?
They are often ex parte. The District Court has far more instances than the Circuit Court or the High Court of the exercise of jurisdiction over search warrants in criminal matters, for example. The High Court has more extensive jurisdiction in all matters. There has been a tendency for the bulk of the volume of that business to be exercised by the District Court. As Deputy Charles Flanagan indicated, the District Court is normally the preferred venue for applications of this character. It was deemed advisable, on reflection, to bring the matter to the High Court on the basis of difficulties pertaining to the location of bank accounts across different districts.
Amendment agreed to.
As amendments Nos. 44 and 60 are related, they may be discussed together.
I move amendment No. 44:
In page 22, between lines 31 and 32, to insert the following subsection:
"(2) An application under this section may be heard otherwise than in public.".
The purpose of this amendment is to expressly provide for an application under this section of the Bill to be heard in private. Article 34.1 of the Constitution states that justice "shall be administered in public" other than in "special and limited cases as may be prescribed by law". As I understand it, the provisions of this section do not prescribe that applications made under it can be considered other than in public. The Minister said in the Seanad that the Bill, as it is presently framed, will allow applications to be heard in public or in private. I fail to understand how his comment can be in accordance with the terms of Article 34.1 of the Constitution.
It is insufficient to leave matters open on the basis of what the Minister said in the Seanad. By saying nothing, we are reverting to the default position that the application must be heard in public. It is important, for a variety of reasons we can all envisage, that there be an option to hear the application in private in certain circumstances. We should therefore take the opportunity to make such provision in the Bill.
I agree that we must have clarity in this area but the Deputy will appreciate that the amendment has only been available for a few days. I have asked the Parliamentary Counsel to examine this matter. The Deputy should note that amendment No. 72, in respect of interception, and amendment No. 75, in respect of freezing orders, provide for applications to be heard in private. One cannot have ambiguity in light of the constitutional presumption referred to by the Deputy. The Parliamentary Counsel will examine this with a view to including a suitable and appropriate amendment.
Is the amendment being withdrawn?
On the basis of what the Minister has said, we will revisit this matter on Report Stage. It is desirable that we be afforded the opportunity to make the legislation crystal clear.
Amendment, by leave, withdrawn.
I move amendment No. 45:
In page 22, subsection (2)(a), line 33, to delete “member” and substitute “designated”.
Amendment agreed to.
If amendment No. 46 is agreed to, amendment No. 47 cannot be moved.
I move amendment No. 46:
In page 23, subsection (5), line 14, to delete paragraph (a).
Amendment No. 46 relates to the issue of the High Court order having to be referred to as a High Court order.
We have essentially discussed the point and the Minister is to return to it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 23, subsection (5)(a), line 14, to delete “District Court” and substitute “High Court”.
Amendment agreed to.
Amendments Nos. 48, 65, 137, 141, 142, 145, 152 and 180 are related and will be discussed together.
I move amendment No. 48:
In page 23, lines 23 to 25, to delete subsection (7).
The amendments are technical, following from our discussions. Amendments Nos. 48 and 65 seek deletions required because the High Court, rather than the District Court, has jurisdiction in respect of certain orders. The acceptance of earlier amendments makes two subsections meaningless and hence the requirement for amendments Nos. 48 and 65.
Amendment No. 137 deals with the issue of a letter of request for evidence to be taken from a person in a designated state for use in criminal proceedings or a criminal investigation in Ireland. Under the provision as it stands, such a letter of request could be issued by a judge at any time or place, but it was felt that this should be limited to a sitting of a court, as an application for a letter of request can be made by either the Director of Public Prosecutions or the person charged. It would not be appropriate for a person charged with a criminal offence to potentially be in a position to make an application to a judge at his or her home. The amendment ensures the application will be made at a court sitting and not simply to the court. Ex parte applications can be made at the private residence of the judge and, on occasion, have been made at race courses. The amendment deals with this issue.
Amendments Nos. 141 and 142 make similar provisions regarding applications for the taking of evidence through a television link. Amendments Nos. 145 and 152 clarify the extent of a District Court judge's powers. Amendment No. 145 relates to when a designated state has asked for assistance in locating evidence within Ireland and a member of the Garda Síochána applies for a search warrant to execute the request. The amendment proposed will ensure the search warrant may only be issued by a judge of the District Court for the district where the place concerned is located, and not just any District Court judge. It is a question of the jurisdiction of the District Court. Amendment No. 152 is a similar provision in respect of a production order.
Amendment No. 180 proposes a new section 87 and provides that orders made under sections 60, 61 or 72 of the Act, which relate to searches for evidence for use outside the State and orders for restitution, are all covered by section 32A of the Courts (Supplemental Provisions) Act 1961. This again relates to the issue of the District Court exercising jurisdiction within its own area and ensures an alignment of the relevant statutory provisions.
On what the Minister said about the sitting of the District Court, I take it that the sitting need not be scheduled. Can it be a special sitting at any time of the day or night, having regard to the urgency of the request?
That is correct. The District Court clerk can be requested to arrange a sitting of the court.
We are saying applications must be made in the physical surrounds of a courthouse.
That is the effect of the amendment.
It is because the person charged can make an application. It is desirable that where a person charged with a criminal offence wishes to make an application, this application should be made in a courthouse rather than a private location or elsewhere.
That is fair enough.
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
I move amendment No. 49:
In page 23, subsection (1), line 32, to delete "member" and substitute "designated".
Amendment agreed to.
I move amendment No. 50:
In page 23, subsection (2), line 38, to delete "member" and substitute "designated".
Amendment agreed to.
I move amendment No. 51:
In page 23, subsection (2)(a), line 44, to delete “member” and substitute “designated”.
Amendment agreed to.
I move amendment No. 52:
In page 24, subsection (3)(b)(ii), line 13, to delete “member” and substitute “designated”.
Amendment agreed to.
Amendments Nos. 53, 62, 138, 140, 143, 144 and 149 to 151, inclusive, are related and may be discussed together.
I move amendment No. 53:
In page 24, subsection (4), line 25, to delete "specified in the request" and substitute the following:
"permitted by the relevant international instrument".
These amendments are similar in that they are intended to address the fact that the Bill has now been extended to give effect to mutual assistance provisions in the additional international instruments I outlined in my reply to Deputy Rabbitte at the commencement of Committee Stage.
Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14.
I move amendment No. 54:
In page 24, subsection (1), line 34, to delete "member" and substitute "designated".
Amendment agreed to.
I move amendment No. 55:
In page 24, subsection (2)(a), line 37, to delete “member” and substitute “designated”.
Amendment agreed to.
I move amendment No. 56:
In page 25, subsection (2)(c)(ii), line 12, to delete “member state” and substitute “State”.
Amendment agreed to.
I move amendment No. 57:
In page 25, subsection (2)(c)(iv), line 17, to delete “member” and substitute “designated”.
Amendment agreed to.
Section 14, as amended, agreed to.
SECTION 15.
I move amendment No. 58:
In page 25, line 30, to delete "District Court" and substitute "High Court".
Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.
I move amendment No. 59:
In page 25, subsection (1), line 35, to delete "District Court" and substitute "High Court".
Amendment agreed to.
I move amendment No. 60:
In page 25, between lines 37 and 38, to insert the following subsection:
"(2) An application under this section may be heard otherwise than in public.".
This is to provide for the option for the application to be heard in private.
I am reviewing whether it is necessary to include the High Court in this legislation.
Amendment, by leave, withdrawn.
I move amendment No. 61:
In page 26, subsection (3)(a), line 10, to delete “member” and substitute “designated”.
Amendment agreed to.
I move amendment No. 62:
In page 26, subsection (3)(c), lines 14 and 15, to delete “2001 Protocol” and substitute “relevant international instrument”.
Amendment agreed to.
I move amendment No. 63:
In page 26, subsection (5), line 24, to delete paragraph (a).
This is the point which I understand will be clarified on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 64:
In page 26, subsection (5)(a), line 24, to delete “District Court” and substitute “High Court”.
Amendment agreed to.
I move amendment No. 65:
In page 26, lines 27 to 29, to delete subsection (6).
Amendment agreed to.
Section 16, as amended, agreed to.
Sections 17 and 18 agreed to.
SECTION 19.
I move amendment No. 66:
In page 27, subsection (1), line 2, to delete "District Court" and substitute "High Court".
Amendment agreed to.
I move amendment No. 67:
In page 27, subsection (2), line 9, to delete "member" and substitute "designated".
Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20.
I move amendment No. 68:
In page 27, between lines 25 and 26, to insert the following subsections:
"(2) A financial institution in the State and any person who is a director, or an officer or other employee, of the institution is guilty of an offence if the institution or person, knowing or suspecting that an application has been made under this Part for an account information order or an account monitoring order or both, makes any disclosure which prejudices, or is likely to prejudice, the criminal investigation giving rise to the application.
(3) In proceedings for an offence under subsection (2) it is a defence for the financial institution or person to prove that the institution or person -
(a) did not know or suspect that the disclosure to which the proceedings relate prejudiced, or was likely to prejudice, the criminal investigation concerned, or
(b) had lawful authority or reasonable excuse for making the disclosure.
(4) A person who is guilty of an offence under subsection (2) is liable-
(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, and
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.”.
This amendment relates to section 20 which is an offence section providing for the circumstances where a financial institution does not comply with an account monitoring or an account information order without reasonable excuse. It also covers circumstances where the institution makes a false or misleading statement while purporting to comply with such an order and penalties are provided.
On further consideration it was realised that there is a gap in the offence provisions because there is no express offence if a financial institution or a person employed by such an institution discloses to the account holder that an account information or monitoring order has been applied for. Should an account holder know that his or her financial activities are under investigation it could have serious repercussions for the success of the investigation. I am therefore bringing forward this amendment to the section which also makes it an offence for a financial institution or a person employed by such an institution to disclose any information that could prejudice an investigation. While express provision is made for a financial institution it is difficult to see how a letter would arrive signed by the governor and company of the Bank of Ireland that the account holder is under investigation but for the sake of comprehensiveness both circumstances are covered.
Amendment agreed to.
Section 20, as amended, agreed to.
Sections 21 to 23, inclusive, agreed to.
SECTION 24.
Amendments Nos. 69 to 72, inclusive, are related and will be discussed together.
I move amendment No. 69:
In page 31, lines 12 to 17, to delete subsection (4).
Is the Minister allowed to change the law by executive act by making a declaration rather than by way of primary legislation? I am advised that there is a constitutional question about whether the Minister can do this. If the Minister wants to do that he could come up with another way of doing so that is in line with the Constitution.
The related amendment No. 70 refers to information obtained by another member state before the Minister authorises it. For what purpose can the other member state use that information? Even if the Minister has not authorised it how could we prevent the other member state from using the information as it chooses?
The primary purpose of the section is to cover a request for the interception and immediate transmission of specified telecommunications messages. The section gives the Minister power to authorise an interception if he or she believes the conditions set out in the preceding section dealing with the request are met. The suggestion is being made that because the Minister has also provided in the section that he or she can make a declaration postponing his or her exercise in general of this power that this is in some sense contrary to the Constitution or is the alteration of the law by an executive act. Ireland would be obliged to advise the Oireachtas at the time of ratification of any proposed declaration and in the event of any subsequent amendment to that declaration. The provision is included to give Ireland the option of making a declaration to the EU at the time of ratification that we are unable to provide for immediate interception and transmission of telecommunications to EU member states.
The declaration enables us to review the capacity of the telecommunications system we have in operation prior to ratification. Again, I do not see any unconstitutionality in that. Essentially, I am asking the Oireachtas to confirm that the Minister has this power, but that he or she may not exercise it in the event that the practical capacity to do that is not there. For that purpose a declaration, which Deputy Rabbitte seeks to delete, will be made pursuant to the fourth subsection.
Is the Minister saying that what is at issue is the capacity of the telecommunications technology to, say, make the interception sought--
Yes.
--and in the event that he is advised that technically it is not feasible, he can get out of his obligations by making a declaration to the effect that he does not have the wherewithal?
That is correct. I do not have the wherewithal to ensure immediate transmission. I can make transmission, but not the immediate transmission, which the relevant instrument requires of us. Hence, the declaration will refer to that issue if it is required.
I read it as a narrowing of the conditions rather than a question of the technical competence to do what is required.
As regards our intention to transmit the information, the issue is how immediate that transmission must be, and a judgment has to be made as to whether we have the technical capacity to do that. That judgment will be made following consultations with the relevant industrial interests.
Is the amendment being pressed?
I should like to ponder on that information before Report Stage.
Amendment, by leave, withdrawn.
Section 24 agreed to.
Section 25 agreed to.
SECTION 26.
I move amendment No. 70:
In page 33, between lines 22 and 23, to insert the following subsection:
"(3) Information obtained by another member state before the decision of the Minister under this section shall not be used by the member state except in accordance with Article 20.4(b)(ii) of the 2000 Convention.”.
I believe the same argument applies. It is related to amendment No. 69.
It is the same issue, in fact.
Will the Minister put his note on the record as regards amendment No. 70?
Amendment No. 70, also proposed by Deputy Rabbitte, attempts to provide legislation governing the behaviour of other states. We cannot legislate to provide that another member state cannot use information until the Minister has made a decision, as we cannot tell other countries what they can or cannot do. What we have put into domestic law here is irrelevant to the territory of another state. The principal issue at stake is already covered by section 26(5), which provides that the Minister may require that any material obtained not be used, or be used only under specified conditions. Thus, the protection which Deputy Rabbitte is attempting to include, is already built into this section.
Amendment, by leave, withdrawn.
Section 26 agreed to.
Sections 27 and 28 agreed to.
SECTION 29.
I move amendment No. 71:
In page 35, line 24, to delete "subsection" and substitute "subsections".
Amendment agreed to.
I move amendment No. 72:
In page 35, line 30, to delete "fine."." and substitute the following:
"fine.
(7) Proceedings for an offence under subsection (6), including any appeal or subsequent proceedings, shall be held in camera.”.”.
We have not discussed this. It is an official amendment and provides that proceedings concerning the offence of non-compliance with a ministerial direction in relation to the interception of telecommunications must be heard in camera. The section, as it stands, would have the result that any criminal proceedings brought in relation to interception would be heard in open court. This could have an unintended negative effect, in that any lapses in the State interception regime that occurred, or would be likely to occur, could become public knowledge. Hence, it is proposed to treat such hearings as in camera hearings. It is important to put that on the record of the committee.
Amendment agreed to.
Section 29, as amended, agreed to.
NEW SECTION.
Amendment No. 73 is a new section. Acceptance of this amendment involves the deletion of section 30.
I move amendment No. 73:
In page 35, before section 30, to insert the following new section:
"FREEZING, CONFISCATION AND FORFEITURE OF PROPERTY
CHAPTER 1
Interpretation
30.-(1) In this Part:
"appeal" includes any proceedings for the discharge or setting aside of a judgment and any application for a new trial or stay of execution;
"certificate" means the certificate-
(a) provided for in Article 9 of the Framework Decision, and
(b) the standard form of which is set out in the Annex to the Decision;
"confiscation co-operation order" has the meaning given to it by section 43;
"confiscation order" means a confiscation order within the meaning of the Act of 1994;
"defendant" means the person to whose property an external freezing order or external confiscation order relates;
"external confiscation order" means an order made by a court in a designated state for the purpose of—
(a) recovering property in the State which was received or obtained as a result of or in connection with conduct which would, if it occurred in the State, constitute an indictable offence,
(b) recovering the value of such property, or
(c) depriving a person of a pecuniary advantage so received or obtained;
"external forfeiture order" means an order for the forfeiture of property in the State which is made by a court in a designated state in or in connection with proceedings resulting from conduct which would, if it occurred in the State, constitute an indictable offence;
"external freezing order" means any measure—
(a) taken provisionally by a competent judicial authority of a designated state 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
(b) made for the purpose of—
(i) subsequent confiscation of the property, or
(ii) protection of evidence;
"forfeiture co-operation order" has the meaning given to it by section 46;
"freezing co-operation order" has the meaning given to it by section 34;
"freezing order" means—
(a) an order under section 24 (as amended by section 85(a) of this Act) of the Act of 1994,
(b) an order under section 14 or 15 of the Criminal Justice (Terrorist Offences) Act 2005, or
(c) an order under section 31,
which relates to property in a designated state or in so far as it does so;
"issuing judicial authority" means a judicial authority in a designated state, as defined in the law of that state, which makes, validates or in any way confirms an external freezing order;
"issuing state" means the designated state in which an issuing judicial authority exercises jurisdiction;
"property" includes property of any description, corporeal or incorporeal, movable or immovable and wherever situated, which the competent judicial authority in the designated state considers—
(a) to be the proceeds of an offence,
(b) to be equivalent to either the full value or a part of the value of such proceeds, or
(c) to be the instrumentalities or objects of an offence, and includes documents evidencing title to or an interest in the property;
"realisable property" means—
(a) in relation to a freezing co-operation order or confiscation co-operation order made in respect of specified property, the property specified in the order, and
(b) in any other case—
(i) any property held by the defendant, and
(ii) any property held by a person to whom the defendant has directly or indirectly made a gift, but does not include property which is the subject of an order made by a court in other proceedings in the State unless or until that order is discharged.
(2) For the purposes of this Part, dealing with property held by any person includes (without prejudice to the generality of the expression)—
(a) where a debt is owed to that person, making a payment to any person in settlement or reduction of the debt, and
(b) removing the property from the State.
(3) References in this Part to a gift are to a gift which, if the external confiscation order were a confiscation order, would be a gift caught by the Act of 1994, and the provisions of that Act concerning a gift so caught apply and have effect in relation to a gift referred to in this Part.".
This deals with the creation of a new Part, dealing with freezing, confiscation and forfeiture orders. In the Bill as it stands, freezing, confiscation and forfeiture orders are dealt with separately in Parts 4 and 6. On revision, it was decided to reword these Parts for clarity. This seemed especially desirable, following advice from the Attorney General that it would be necessary to place provisions dealing with confiscation co-operation orders into primary legislation. This has resulted in a large number of amendments to the Parts. The amendments I now propose clarify and simplify the freezing, confiscation and forfeiture amendment provisions, with new headings and a new section. It will lead to the deletion of section 30.
Amendment agreed to.
Section 30 deleted.
SECTION 31.
Amendments Nos. 74 to 78, inclusive, Nos. 85 to 92, inclusive, and Nos. 101 to 112, inclusive, are in the name of the Minister and are related. They may be discussed together.
I move amendment No. 74:
In page 37, subsection (2), line 12, after "ex parte” to insert “and otherwise than in public”.
All of these amendments deal with freezing orders. Amendment No. 74 provides for the application for a freezing order. It provides that evidence may be heard in private. Deputy Rabbitte's amendment No. 75 also refers to this issue and is addressed in my amendment.
Amendment No. 79 deals with legal privilege. Consequently, amendment No. 77 deletes the current section dealing with the same subject matter. Amendment No. 76 is technical, as is amendment No. 78, which switches the definition of a "member" state to a "designated" state. Amendment No. 85 deletes provisions in section 32 relating to freezing orders which are now contained in another section.
Amendment No. 86 provides that the registrar shall return the relevant documents to the applicant rather than sending them directly to the central authority. This has been done to avoid the onus of obtaining a translation falling on the registrar. Instead, it will be the responsibility of the applicant to obtain a translation before sending documents to the central authority.
Amendments Nos. 87 and 89 again deal with freezing orders applying to designated states, as well as EU member states. Amendment No. 87 sets out what information must be supplied when Ireland is sending a freezing order to a designated state. Amendment No. 89 deals with information required from a designated state.
Amendments Nos. 90 and 91 are technical in character. Amendment No. 92 deals with section 34. It inserts a new section dealing with the recognition and enforcement of external freezing orders. Amendments Nos. 101, 102 and 104 are related to section 36 and are technical in character. Amendment No. 104 deletes the existing subsection (4). It inserts a new subsection providing that the registrar of the court shall inform the issuing judicial authority of the outcome of the application. The former subsection included a provision that the registrar of the court would inform the issuing judicial authority of the application for variation or discharge. However, the Courts Service was concerned that this information might not be readily available to the courts. Thus, these amendments place the onus of notification of the application on the applicant. The remaining group of amendments are purely technical in character.
Amendment agreed to.
I move amendment No. 75:
In page 37, between lines 17 and 18, to insert the following subsection:
"(3) An application under this section may be heard otherwise than in public.".
I withdraw the amendment in line with the recurring point.
We have addressed it in the context of this amendment but it is outstanding with regard to the previous one.
Amendment, by leave, withdrawn.
I move amendment No. 76:
In page 37, subsection (3)(b)(ii), line 25, after “investigation,” to insert “and”.
Amendment agreed to.
I move amendment No. 77:
In page 37, subsection (3)(b)(iii), lines 26 to 28, to delete all words from and including “and” in line 26 down to and including “privilege,” in line 28.
Amendment agreed to.
I move amendment No. 78:
In page 37, subsection (3)(c), line 30, to delete “member” and substitute “designated”.
Amendment agreed to.
I move amendment No. 79:
In page 37, lines 33 and 34, to delete subsection (4) and substitute the following:
"(4) An order under this section-
(a) does not apply in relation to any documents subject to legal privilege, and
(b) has effect for all purposes as if it were an order of the High Court under section 24 (as amended by section 85(a) of this Act) of the Act of 1994.”.
Amendment agreed to.
Amendment No. 80 not moved.
I move amendment No. 81:
In page 38, subsection (6)(a), line 2, to delete “member” and substitute “designated”.
Amendment agreed to.
I move amendment No. 82:
In page 38, subsection (6)(b), line 4, to delete “member” and substitute “designated”.
Amendment agreed to.
I move amendment No. 83:
In page 38, subsection (6), line 7, to delete "member" and substitute "designated".
Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.
Amendment Nos. 84 and 113 are related and will be discussed together.
I move amendment No. 84:
In page 38, between lines 9 and 10, to insert the following subsection:
"32.—(1) This section applies to a freezing order whether made before or after the commencement of this section.".
Amendment No. 113 applies to confiscation orders while amendment No. 84 applies to freezing orders. I seek to insert a new subsection that would make it clear that the power applies to a freezing order, whether it was made before or after the commencement of this section. This is necessary to make clear that the power to seek enforcement under section 32 will apply to existing freezing orders and not just orders granted after the enactment of this legislation. Otherwise there would be a huge anomaly, whereby extant orders against persons suspected or convicted of crime could not be enforced under this Bill. We ought to make it plain that the section applies to freezing orders already made so that this new procedure for enforcement would apply to existing freezing orders. It should be considered to be in the public interest that it be clear that they are included in the new power in this Bill.
Section 32 deals with the transmission of a freezing order to another member state for enforcement. I am advised that previous orders can be transmitted under this legislation. The jist of what is intended here is that it should be possible to transmit a freezing order under the terms laid out in this section, even if the freezing order was made some time ago. As such, the amendment is not necessary because section 32 deals solely with transmission. At no point does it state that transmission in the manner laid out may only be used with regard to orders made after a certain date. Once this provision is enacted, it may be applied to a freezing order regardless of when that order is made. To expressly state that the section applies to a freezing order, whether made before or after the commencement of the section, almost begs the question of whether in fact we are introducing retroactive legislation. I am advised that in its terms, the legislation permits the enforcement of existing freezing orders.
With regard to amendment No. 113, section 41 deals with the request to designated states for the confiscation of property. Again, as I understand it, Deputy Rabbitte is anxious to put beyond doubt the fact that a request can be sent to a designated state in respect of a confiscation order that may have been made some time ago. As I laid out in regard to amendment No. 48, the position is that the section deals with the sending of a request relating to a confiscation order rather than to the making of the order itself. As such, there is no specification that the request to a designated state may only be made in regard to an order made after a certain date.
I take the view that a purpose is not served by the amendments and that by raising the issue of whether they are made before or after the commencement of the section, the Deputy raises a doubt in criminal legislation as to whether they are valid orders in the first place, whereas the legislation is wide enough to encompass previous orders.
We seem to be ad idem with regard to the desirability of the inclusion of existing orders, whether freezing orders or confiscation orders. The motivation for this amendment is that the position is not clear and an anomaly might arise whereby existing orders would not be encompassed by this legislation. If the Minister says he is satisfied, that his opinion is corroborated by that of the Attorney General, that this does encompass existing orders and that my amendments for the purpose of putting this beyond doubt are not necessary, I will accept that. However, it is not immediately apparent in reading the Bill, that, for example, a freezing order already made is encompassed in it. If it is, that is good because it is necessary, given that freezing orders exist as we speak. It is important there is no anomaly between existing orders and new orders to be made.
The advice of the Parliamentary Counsel is that orders already made are encompassed by the request for transmission and that the reference to "before or after" raises the doubt as to whether there are some sort of vested rights that would prevent us, as legislators, from providing as we have provided in plain language that all orders are captured by it.
For the record, Deputy Flanagan advises me that my purpose is not to raise a doubt but to put beyond doubt.
I appreciate that.
I am not exactly sure I understand how a section that makes plain that it applies to freezing orders made before the commencement of the section could give rise to a doubt. I am sure the Minister's colleagues at the Bar Library will be perfectly capable of thinking it up for themselves.
Former colleagues.
Former colleagues. They will not need to read the transcript of this Committee Stage to be inspired to argue it does not apply. We will see.
Is the amendment being withdrawn?
Yes, I reserve my right, before Report Stage, to look at what the Minister has put on the record.
Amendment, by leave, withdrawn.
I move amendment No. 85:
In page 38, lines 16 to 20, to delete subsection (2).
Amendment agreed to.
I move amendment No. 86:
In page 38, subsection (5), lines 31 and 32, to delete all words from and including "The" in line 31 down to and including "Court" in line 32 and substitute the following:
"The freezing order and certificate shall be sent by a registrar of the Court to the applicant, who shall send them".
Amendment agreed to.
I move amendment No. 87:
In page 38, between lines 34 and 35, to insert the following subsection:
"(6) If a freezing order relates to property in a designated state (other than a member state), the Director of Public Prosecutions may send to the Central Authority, for transmission to the appropriate authority in the designated state with a view to having the freezing order enforced—
(a) a duly authenticated copy of the order, and
(b) such other information as may be required by the appropriate authority in accordance with the relevant international instrument.”.
Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.
I move amendment No. 88:
In page 38, subsection (1), line 36, after "order" to insert "from a member state".
Amendment agreed to.
I move amendment No. 89:
In page 38, lines 43 to 45, to delete subsection (2) and substitute the following:
"(2) A request from any other designated state for the enforcement of an external freezing order shall be accompanied by—
(a) a duly certified copy of the order,
(b) a statement of the grounds—
(i) for making the order, and
(ii) for believing that the evidence or property concerned will be subject to an order of confiscation,
and any other information required by the relevant international instrument.".
Amendment agreed to.
I move amendment No. 90:
In page 39, subsection (3), line 1, after "subsection (1)” to insert “or (2)”.
Amendment agreed to.
I move amendment No. 91:
In page 39, subsection (4), line 7, after "certificate" to insert "(where appropriate)".
Amendment agreed to.
Section 33, as amended, agreed to.
NEW SECTION.
Amendment No. 92 was discussed with amendment No. 74. Acceptance of this amendment involves the deletion of section 34 of the Bill.
I move amendment No. 92:
In page 39, before section 34, to insert the following new section:
34.—(1) The Central Authority shall, on receipt of an external freezing order, certificate (where appropriate), any other supporting or related documents and any translation, forthwith cause an application to be made to the High Court for an order (in this Part referred to as a "freezing co-operation order") recognising the external freezing order and prohibiting any person from dealing with the property specified in the external freezing order.
(2) The application may be made ex parte and otherwise than in public and shall be accompanied by the documents mentioned in subsection (1) or copies thereof and, in the case of a designated state (other than a member state), shall be made with the consent of the Minister.
(3) An application from a member state for the enforcement of an external freezing order shall be dealt with as soon as possible and, whenever practicable, within 24 hours of receipt of the order and a duly completed certificate.
(4) On an application under this section the Court may, subject to subsection (5), make a freezing co-operation order, subject to any conditions that may be specified in the order.
(5) The Court may—
(a) refuse to make a freezing co-operation order on a ground mentioned in section 3 or 37, or
(b) postpone its making on a ground mentioned in section 38.
(6) Where a request from a member state concerns an offence referred to in Article 3(2) of the Framework Decision which is punishable in that state by a maximum term of imprisonment of not less than 3 years, the Court may not refuse to make a freezing co-operation order solely on the ground that the conduct constituting the offence concerned does not constitute an offence under the law of the State.
(7) Where—
(a) an external freezing order is for the protection of evidence,
(b) it is necessary to ensure that the evidence is admissible in the proceedings concerned, and
(c) for that purpose certain formalities and procedures in the enforcement of the external freezing order are expressly indicated by the issuing judicial authority,
the freezing co-operation order shall make provision for observing those formalities and procedures, unless their observance would be contrary to the fundamental principles of the law of the State.
(8) The Court shall cause notice of the freezing co-operation order to be given to any person who appears to be or is affected by it, unless the Court is satisfied that it is not reasonably possible to ascertain the person's whereabouts.".
Amendment agreed to.
Section 34 deleted.
NEW SECTIONS.
Amendments Nos. 93 to 100, inclusive, are related and may be discussed together.
I move amendment No. 93:
In page 40, before section 35, to insert the following new section:
35.—(1) A freezing co-operation order may apply—
(a) where particular property is specified in the external freezing order, to the property so specified, and
(b) in any other case—
(i) to realisable property held by a specified person, whether the property is described in the freezing co-operation order or not, and
(ii) to any realisable property held by a specified person, being property transferred to the person after the external freezing order was made.
(2) A freezing co-operation order may make such provision as the Court thinks fit for the living expenses and legal expenses of the person possessing the property concerned.
(3) The Court—
(a) may at any time appoint a receiver—
(i) to take possession of any realisable property to which a freezing cooperation order applies, and
(ii) in accordance with the Court's directions, to manage or otherwise deal with the property, subject to such exceptions and conditions as it may specify,
and
(b) may require any person having possession or control of the property to give up possession of it to the receiver.
(4) Where the Court has made a freezing co-operation order, a member of the Garda Síochána or an officer of customs and excise may seize any realisable property for the purpose of preventing its removal from the State.
(5) Property taken possession of under subsection (4) shall be dealt with in accordance with the Court’s directions.”.
Amendments Nos. 93 to 100, inclusive, propose the insertion of several new sections. The amendments contain nothing new but are a restatement of existing provisions in the Criminal Justice Act 1994 dealing with freezing orders, as modified by the Criminal Justice Act 1994 Regulations, 1996.
While the Bill repeals Part VII of the 1994 Act, which deals with international co-operation, and rewords and amends the provisions contained in that Part, it was originally intended to allow the 1994 Act provisions dealing with freezing orders to stand with the simple amendment of the term "restraint order" to "freezing order". However, since the Bill completed its passage through the Seanad, the Attorney General has advised that the wisest course of action to prevent any possible legal challenge is to put the provisions of the 1996 regulations into primary legislation. That is the purpose of these amendments. While there has been some rewording for the sake of clarity, there is nothing new in these proposals.
Amendment agreed to.
I move amendment No. 94:
In page 40, before section 35, to insert the following new section:
36.—(1) Where a freezing co-operation order is made in relation to land, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Property Registration Authority a notice of the making of the order, together with a copy of the order.
(2) On receipt of those documents the Authority shall—
(a) if the land is registered land, cause an entry to be made in the register kept by it under the Registration of Deeds and Title Acts 1964 and 2006 inhibiting, until the order is discharged, any dealing with the land and any charge thereon, and
(b) if the order is subsequently varied or discharged, cause the entry to be varied accordingly or cancelled, as the case may be.
(3) If subsection (2)(a) does not apply, the Authority shall cause the notice of the making, variation or discharge of the freezing co-operation order to be registered in the register of deeds maintained by the Authority under section 35 of the Registration of Deeds and Title Act 2006.
(4) Where a freezing co-operation order is made which affects an interest in a company or its property, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Companies a notice of the making of the order, together with a copy of the order.
(5) On receipt of those documents the Registrar of Companies shall, if the company is a registered company, cause the notice to be entered in the Register of Companies and—
(a) if the company is an existing company within the meaning of the Companies Acts 1963 to 2006, send a copy of the notice to each director and the secretary of the company at the company’s registered office, or
(b) in any other case, send a copy of the notice by post to the person resident in the State who has been authorised to accept, on behalf of the company concerned, service of process and any notices required to be served on it.
(6) In this section—
"Register of Companies" means the Register of Companies maintained under the Companies Acts 1963 to 2006;
"registered company" means—
(a) a company formed and registered under those Acts,
(b) an existing company within the meaning of those Acts, or
(c) a company registered under Part XI of the Companies Act 1963 or the European Communities (Branch Disclosure) Regulations 1993 (S.I. No. 395 of 1993).”.
Amendment agreed to.
I move amendment No. 95:
In page 40, before section 35, to insert the following new section:
37.—(1) The powers of the High Court under section (35) or of a receiver appointed under that section shall be exercised, subject to this section, with a view to making available for recovery property which may become liable to be recovered under any confiscation co-operation order that may be made in the defendant’s case.
(2) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of a gift, to retain or recover the value of any property held by the person.
(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.
(4) In exercising the powers no account shall be taken of any obligations of the defendant or the recipient of any gift that conflict with the obligation to satisfy any confiscation co-operation order that may be made in the defendant's case.".
Amendment agreed to.
I move amendment No. 96:
In page 40, before section 35, to insert the following new section:
38.—A receiver appointed under section 35 who takes any action—
(a) in relation to property which is not realisable property, being an action which he or she would be entitled to take if it were such property,
(b) believing, and having reasonable grounds for believing, that he or she is entitled to take that action in relation to that property,
is not liable to any person in respect of any loss or damage resulting from the action except in so far as the loss or damage is caused by his or her negligence.".
Amendment agreed to.
I move amendment No. 97:
In page 40, before section 35, to insert the following new section:
39.— (1) Where a person who holds realisable property is adjudicated bankrupt—
(a) property for the time being subject to a freezing co-operation order made before the order adjudicating the person bankrupt, and
(b) any proceeds of property realised by virtue of section 35, for the time being in the hands of a receiver,
is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act 1988.
(2) Where a person has been adjudicated bankrupt, the powers of the High Court under section 35 or of a receiver appointed under that section shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.
(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift—
(a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a freezing co-operation order, and
(b) any decision as to whether it is void made under any of those sections after the discharge of the freezing co-operation order shall take into account any realisation under this Act of property held by the person to whom the gift was made.
(4) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before 1 January 1989, this section has effect with the modification that for references to the property of the bankrupt for the purposes of the said Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.".
Amendment agreed to.
I move amendment No. 98:
In page 40, before section 35, to insert the following new section:
40.—(1) Without prejudice to the generality of any provision of any other enactment, where—
(a) the Official Assignee or a trustee appointed under Part V of the Bankruptcy Act 1988 seizes or disposes of any property in relation to which his or her functions are not exercisable because it is for the time being subject to a freezing co-operation order, and
(b) at the time of the seizure or disposal he or she believes, and has reasonable grounds for believing, that he or she is entitled (whether under an order of the court or otherwise) to seize or dispose of the property,
he or she is not liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his or her negligence in so acting, and he or she has a lien on the property, or the proceeds of its sale, for such of his or her expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his or her remuneration as may reasonably be assigned for his or her acting in connection with those proceedings.
(2) Where the Official Assignee or a trustee appointed as aforesaid incurs expenses in respect of any property mentioned in subsection (1)(a) and, when doing so, does not know and has no reasonable grounds for believing that the property is subject to a freezing co-operation order, he or she is entitled (whether or not he or she has seized or disposed of that property so as to have a lien) to payment of those expenses under section 41.”.
Amendment agreed to.
I move amendment No. 99:
In page 40, before section 35, to insert the following new section:
41. —(1) Money paid or recovered in respect of a freezing co-operation order (including any variation of such an order) may, to the extent necessary, be applied to meet expenses incurred in exercising any powers under this Act and the remuneration of any person employed for that purpose.
(2) Money paid or recovered in respect of a freezing co-operation order, after payment of any expenses or remuneration in accordance with subsection (1)—
(a) shall be applied towards satisfaction of the order, and
(b) shall, subject to any provision to the contrary in the relevant international instrument, be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance unless, on request by or on behalf of the designated state concerned, the Court provides otherwise.”.
Amendment agreed to.
I move amendment No. 100:
In page 40, before section 35, to insert the following new section:
42.—(1) Where realisable property is held by a company and an order for its winding up has been made or a resolution has been passed by it for a voluntary winding up, the functions of the liquidator (or any provisional liquidator) are not exercisable in relation to—
(a) property for the time being subject to a freezing co-operation order made before the relevant time, and
(b) any proceeds of property realised by virtue of section 35 for the time being in the hands of a receiver.
(2) Where such an order has been made or such a resolution passed, the powers conferred on the High Court under section 35 or on a receiver appointed under that section shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable—
(a) so as to inhibit him or her from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors, or
(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.
(3) In this section—
"company" means any company which may be wound up under the Companies Acts 1963 to 2006,
"relevant time" means—
(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for its voluntary winding up,
(b) where such an order has been made and, before presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and
(c) in any other case where such an order has been made, the time of the making of the order.”.
Amendment agreed to.
Section 35 agreed to.
SECTION 36.
I move amendment No. 101:
In page 40, subsection (1)(b)(i), line 40, to delete “the making of” and substitute “for”.
Amendment agreed to.
I move amendment No. 102:
In page 40, after line 45, to insert the following subsection:
"(2) Notice of an application under this section and of the grounds for it shall be given by the applicant, in such manner as may be prescribed by rules of court or as the Court may direct, to the Central Authority for transmission to the issuing authority.".
Amendment agreed to.
I move amendment No. 103:
In page 41, subsection (3), line 5, to delete "member".
Amendment agreed to.
I move amendment No. 104:
In page 41, lines 6 to 11, to delete subsection (4) and substitute the following:
"(4) The registrar of the Court shall inform the issuing judicial authority of the outcome of the application.".
Amendment agreed to.
Section 36, as amended, agreed to.
SECTION 37.
I move amendment No. 105:
In page 41, subsection (1)(a), line 15, to delete “within the meaning of this Part” and substitute the following:
"to which the relevant international instrument relates".
Amendment agreed to.
I move amendment No. 106:
In page 41, subsection (1)(b), line 16 before “the” to insert the following:
"where the external freezing order was made in a member state,".
Amendment agreed to.
I move amendment No. 107:
In page 41, subsection (1)(c), line 20, to delete “or”.
Amendment agreed to.
I move amendment No. 108:
In page 41, subsection (1)(d), line 22, to delete “the certificate” and substitute “a certificate”.
Amendment agreed to.
I move amendment No. 109:
In page 41, subsection (1)(d), line 26, to delete “principle.” and substitute the following:
"principle, or
(e) in the case of an external freezing order from a designated state (other than a member state), there is not a reasonable basis for believing—
(i) that there are sufficient grounds for making the order, or
(ii) that the property will be subject to an external confiscation order.".
Amendment agreed to.
Section 37, as amended, agreed to.
Section 38 agreed to.
SECTION 39.
I move amendment No. 110:
In page 42, subsection (1), line 35, to delete "member".
Amendment agreed to.
I move amendment No. 111:
In page 42, subsection (3)(a), line 42, to delete “the request” and substitute “a request from a member state”.
Amendment agreed to.
I move amendment No. 112:
In page 42, subsection (3)(b), line 44, to delete “member”.
Amendment agreed to.
Section 39, as amended, agreed to.
Section 40 deleted.
SECTION 41.
Amendment No. 113 not moved.
Amendments Nos. 114 to 120, inclusive, and 128 to 136, inclusive, are related and may be discussed together.
I move amendment No. 114:
In page 44, subsection (1), lines 9 to 20, to delete paragraphs (a) to (c) and substitute the following:
"(a) a duly authenticated copy of the order, and
(b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.”.
Amendments Nos. 114 to 120, inclusive, and 128 to 136, inclusive, deal with confiscation and forfeiture. Many of them are introduced on foot of the inclusion of the three new instruments I mentioned, the United Nations Convention against Corruption, the UN Convention against Transnational Organised Crime, and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism.
Freezing, seizure and confiscation are dealt with at Article 31 and mutual assistance at Article 46 of the United Nations Convention against Corruption. The UN Convention against Transnational Organised Crime deals with confiscation, including forfeiture, at Articles 12 to 14, inclusive, while Article 18 of that convention deals with mutual legal assistance. The Council of Europe convention deals with confiscation at section 4. There is a substantial correspondence with existing procedures.
Amendment No. 135 contains an incorrect reference to a "confiscation order" instead of a "forfeiture order". This was a drafting oversight in the amendment. I propose to let it stand and be corrected on Report Stage. I ask members momentarily to legislate for an absurdity on my undertaking that it will be corrected in due course.
Amendment agreed to.
I move amendment No. 115:
In page 44, subsection (2), lines 26 to 29, to delete paragraphs (b) and (c) and substitute the following:
"(b) a document signed by or on behalf of the Director stating--
(i) that the order is in force and has not been satisfied, and
(ii) that the defendant appeared or was represented at the proceedings in which the order was made or, if not, the date on which the court proceedings began and the date on which the defendant received notice of them,
(c) a brief description of the conduct which resulted in the making of the order, and
(d) a request that the property concerned be realised and the proceeds applied in accordance with the law of that state.”.
Amendment agreed to.
Section 41, as amended, agreed to.
NEW SECTION.
I move amendment No. 116:
In page 45, before section 42, to insert the following new section:
42.-(1) An external confiscation order may be transmitted by or on behalf of the court that made it to the Central Authority with a request for its enforcement.
(2) The external confiscation order shall be accompanied by-
(a) a duly certified copy of the order,
(b) a statement by or on behalf of the court that made the order-
(i) that it is in force and not subject to appeal, and
(ii) that, if the person against whom it was made did not appear in the proceedings concerned, notice thereof was received by the person in good time to defend the proceedings,
(c) a brief description of the conduct constituting the offence which resulted in the making of the order, and
(d) any required translations,
and shall include any further information required by the relevant international instrument.".
Amendment agreed to.
Section 42 deleted.
SECTION 43.
I move amendment No. 117:
In page 45, lines 28 to 30, to delete subsection (2) and substitute the following:
"(2) The application shall be accompanied by the request, the accompanying documents and any other related documents or by copies thereof.".
Amendment agreed to.
I move amendment No. 118:
In page 45, subsection (4)(a)(i), line 37, to delete “and”.
Amendment agreed to.
I move amendment No. 119:
In page 45, subsection (4)(a)(ii), line 38, to delete “section 42(2)(a)” and substitute “section 42(2)(b)”.
Amendment agreed to.
I move amendment No. 120:
In page 45, subsection (4)(a), between lines 38 and 39, to insert the following:
"(iii) that the conduct which resulted in the making of the external confiscation order constitutes criminal conduct, and
(iv) that the making of the order is otherwise in accordance with the relevant international instrument,".
Amendment agreed to.
Amendments Nos. 121 to 127, inclusive, are related and may be discussed together.
I move amendment No. 121:
In page 46, lines 3 to 47 and in page 47, lines 1 to 5, to delete subsections (5) to (7).
These amendments deal with confiscation orders and again arise from the advice of the Attorney General to place the Criminal Justice Act 1994 regulations of 1996 in primary legislation. The amendments also reiterate some of the sections in Part III of the 1994 Act dealing with the enforcement of confiscation orders.
I have already indicated that since the Bill completed its passage through the Seanad, the Attorney General has advised that the wisest course of action to prevent any possible legal challenge is to put the provisions of the 1996 regulations into primary legislation. The select committee has already dealt with amendments placing the provisions on freezing orders in primary legislation and these amendments do likewise for the confiscation co-operation orders.
Amendment agreed to.
Section 43, as amended, agreed to.
NEW SECTIONS.
I move amendment No. 122:
In page 47, before section 44, to insert the following new section:
44.-(1) Where the High Court makes a confiscation co-operation order for the payment of a sum of money, the order may, without prejudice to section 37 enabling property of the defendant in the hands of a receiver appointed under this Act to be applied in satisfaction of the order, be enforced by the Director of Public Prosecutions at any time after it is made (or, if the order provides for payment at a later time, then at any time after the later time) as if it were a judgment of the Court for the payment to the State of the sum specified in the order or of any lesser sum remaining due under it.
(2) Nothing in subsection (1) enables a person to be imprisoned.
(3) Subject to subsections (4) and (5), if, at any time after payment of a sum due under a confiscation co-operation order has become enforceable in the manner provided for by subsection (1), it is reported to the Court by the Director of Public Prosecutions that any such sum or any part of it remains unpaid, the Court may, without prejudice to the validity of anything previously done under the order or to the power to enforce the order subsequently in accordance with subsection (1), order that the defendant be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite to the amount remaining unpaid under the confiscation co-operation order as set out in the first column thereof.
(4) An order under subsection (3) shall not be made unless-
(a) the defendant has been given a reasonable opportunity to make any representations to the Court, and
(b) the Court has taken into account those representations and any representations made by the Director of Public Prosecutions in reply.
(5) A defendant shall not be imprisoned for non-compliance with a confiscation co-operation order if the request for the enforcement of the external confiscation order so specifies and the relevant international instrument so provides.
(6) Any term of imprisonment imposed under subsection (3) of this section shall be reduced in proportion to any sum or sums paid or recovered from time to time under the confiscation co-operation order.
|
Amount outstanding under confiscation order |
Period of imprisonment |
|
Not exceeding €650 |
45 days |
|
Exceeding €650 but not exceeding €1,300 |
3 months |
|
Exceeding €1,300 but not exceeding €3,250 |
4 months |
|
Exceeding €3,250 but not exceeding €6,500 |
6 months |
|
Exceeding €6,500 but not exceeding €13,000 |
9 months |
|
Exceeding €13,000 but not exceeding €26,000 |
12 months |
|
Exceeding €26,000 but not exceeding €65,000 |
18 months |
|
Exceeding €65,000 but not exceeding €130,000 |
2 years |
|
Exceeding €130,000 but not exceeding €325,000 |
3 years |
|
Exceeding € 325,000 but not exceeding €1,300,000 |
5 years |
|
Exceeding €1,300,000 |
10 years |
Amendment agreed to.
I move amendment No. 123:
In page 47, before section 44, to insert the following new section:
45.-(1) Where-
(a) a confiscation co-operation order for the payment of a sum of money has not been satisfied, or
(b) such an order is for the confiscation of property other than such a sum,
the High Court may, on application by the Director of Public Prosecutions, appoint a person to be a receiver in respect of realisable property.
(2) The Court may empower the receiver to take possession of any realisable property subject to such conditions or exceptions as may be specified by the Court.
(3) The Court may order any person having possession or control of any realisable property to give possession of it to the receiver.
(4) The Court may empower the receiver to realise any realisable property in such manner as the Court may direct.
(5) The Court may order any person holding an interest in realisable property to make such payment to the receiver as the Court may direct in respect of any beneficial interest held by the defendant or the recipient of any gift caught by this Act and the Court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.
(6) The Court shall not, in respect of any property, exercise the powers conferred by this section unless a reasonable opportunity has been given to persons holding any interest in the property to make representations to it.".
Amendment agreed to.
I move amendment No. 124:
In page 47, before section 44, to insert the following new section:
46.-(1) Subject to subsection (2), if any sum required to be paid by a person under a confiscation co-operation order is not paid when it is required to be paid (whether on the making of the order or at a later time specified by the Court), the person shall be liable to pay interest on the sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from the person under the order.
(2) The amount of interest payable under subsection (1) shall be disregarded when calculating the term of imprisonment to be imposed under section 44.
(3) The rate of interest payable under subsection (1) is that for the time being applying in relation to a High Court civil judgment debt.”.
Amendment agreed to.
I move amendment No. 125:
In page 47, before section 44, to insert the following new section:
47.-(1) Where a sum of money payable or remaining to be paid under an external confiscation order is expressed in a currency other than the euro, the confiscation co-operation order shall require payment of an equivalent euro amount, calculated at the baseline rate of exchange prevailing between that currency and the euro on the date of the making of the confiscation co-operation order.
(2) For the purposes of subsection (1), a certificate-
(a) purporting to be signed by an officer of a financial institution (within the meaning of Part 2) in the State, and
(b) stating the exchange rate prevailing on a specified date between a specified currency and the euro,
is admissible, without further proof, as evidence of the exchange rate so prevailing on that date.".
Amendment agreed to.
I move amendment No. 126:
In page 47, before section 44, to insert the following new section:
48.-(1) The powers of the High Court under section 45 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to recovering property which is liable to be recovered under the confiscation co-operation order concerned.
(2) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of a gift, to retain or recover the value of any property held by the person.
(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.
(4) In exercising the powers no account shall be taken of any obligations of the defendant or the recipient of any gift that conflict with the obligation to satisfy the confiscation co-operation order.".
Amendment agreed to.
I move amendment No. 127:
In page 47, before section 44, to insert the following new section:
49.- Sections 38, 39, 41 and 42 apply in relation to confiscation co-operation orders as they apply in relation to freezing co-operation orders, and accordingly-
(a) references to section 35 in sections 38, 39 and 42 shall be construed as references to section 45, and
(b) references in sections 39, 41 and 42 to a freezing co-operation order shall be construed as references to a confiscation co-operation order.”.
Amendment agreed to.
SECTION 44.
I move amendment No. 128:
In page 47, subsection (1), lines 25 to 36, to delete paragraphs (a) to (c) and substitute the following:
"(a) a duly authenticated copy of the order, and
(b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.”.
Amendment agreed to.
I move amendment No. 129:
In page 47, subsection (2), lines 40 and 41, to delete paragraphs (a) and (b) and substitute the following:
"(a) the documents mentioned in subsection (1),
(b) a document signed by or on behalf of the Director stating-
(i) that the order is in force and has not been satisfied, and
(ii) that the defendant appeared or was represented at the proceedings in which the order was made or, if not, the date on which the court proceedings began and the date on which the defendant received notice of them,
(c) a brief description of the conduct which resulted in the making of the order,
(d) any other information required by the relevant international instrument, and
(e) a request for forfeiture of the property concerned and its disposal.”.
Amendment agreed to.
Section 44, as amended, agreed to.
NEW SECTION.
I move amendment No. 130:
In page 48, before section 45, to insert the following new section:
45.-(1) An external forfeiture order may be transmitted by or on behalf of the court that made it to the Central Authority with a request for its enforcement.
(2) The external forfeiture order shall be accompanied by-
(a) a duly certified copy of the order,
(b) a statement by or on behalf of the court that made the order-
(i) that it is in force and not subject to appeal, and
(ii) that, if the person against whom it was made did not appear in the proceedings concerned, notice thereof was received by the person in good time to defend the proceedings,
(c) a brief description of the conduct constituting the offence which resulted in the making of the order, and
(d) any required translations,
and shall include any further information required by the relevant international instrument.".
Amendment agreed to.
Section 45 deleted.
SECTION 46.
I move amendment No. 131:
In page 48, subsection (1), line 20, to delete "the property" and substitute "realisable property".
Amendment agreed to.
I move amendment No. 132:
In page 48, lines 22 to 24, to delete subsection (2) and substitute the following:
"(2) The application shall be accompanied by the request, the accompanying documents and any other related documents or by copies thereof.".
Amendment agreed to.
I move amendment No. 133:
In page 48, subsection (4)(a)(i), line 31, to delete “and”.
Amendment agreed to.
I move amendment No. 134:
In page 48, subsection (4)(a)(ii), line 32, to delete “section 45(2)(a)” and substitute “section 45(2)(b)”.
Amendment agreed to.
I move amendment No. 135:
In page 48, subsection (4)(a), between lines 32 and 33, to insert the following:
"(iii) that the conduct which resulted in the making of the external confiscation order constitutes criminal conduct, and
(iv) that the making of the order is otherwise in accordance with the relevant international instrument,".
Amendment agreed to.
I move amendment No. 136:
In page 49, lines 1 to 3, to delete subsection (6) and substitute the following:
"(6) The forfeited property or the proceeds of any sale of the property shall be disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance, unless, on request by or on behalf of the designated state concerned and in accordance with the relevant international instrument, the Court provides otherwise.".
Amendment agreed to.
Section 46, as amended, agreed to.
Section 47 agreed to.
SECTION 48.
I move amendment No. 137:
In page 49, subsection (1), line 34, after "judge" to insert "at a sitting".
Amendment agreed to.
I move amendment No. 138:
In page 50, subsection (6), line 16, after "that" to insert the following:
"permitted by the relevant international instrument or".
Amendment agreed to.
I move amendment No. 139:
In page 50, subsection (8), line 28, after "admissible" to insert the following:
", provided that no statement insofar as it consists of or includes a statement controverted by the defendant in proceedings shall be admissible under this section unless the defendant was afforded the opportunity to exercise the rights referred to in subsection (10)(a)”.
This chapter deals with the taking of evidence in the manner prescribed. The new subsection that I seek to have enshrined in the Bill provides that no statement, in so far as it consists of or includes a statement controverted by the defendant in proceedings, shall be admissible unless the defendant was afforded the opportunity to exercise the rights referred to in subsection (10)(a). Essentially, I am concerned about the right to cross-examine. This section permits the taking of evidence abroad in another designated state. However, a defendant who challenges the evidence must be allowed the right to cross-examine. That is the net point. If the defendant does not challenge it, that is fine. However, if he or she disputes it, the court must see that the right to cross-examine had been present.
As I understand it, constitutionally, the right to cross-examine has been required ever since the in re Haughey judgment. Persons who appear before courts, tribunals of inquiry or even parliamentary inquiries these days will assert their constitutional rights under in re Haughey. I would have thought that this Bill should make clear that a defendant who disputes the evidence has been seen to have been given that right.
While I agree with Deputy Rabbitte, I understand the matter is already addressed in the section under consideration because section 48(10) states:
A court, when considering whether any evidence taken from a person pursuant to a letter of request should be excluded in the exercise of its discretion to exclude evidence otherwise admissible, shall, where appropriate, have regard to... whether the law of the State concerned allowed the person and any other party concerned, when the evidence was being taken, to be legally represented and cross-examined and... any other respects in which the taking of the evidence may have differed from the taking of comparable evidence in the State.
Plainly, in respect of any matter regarding the admissibility of evidence, discretion must be left to the court assessing the evidence because inherently, it is a matter on which a court is in the best position to make a judgment. We are making express provision here for discretion in the court in considering such evidence to determine whether it should be admissible. In other words, we are giving a discretion to exclude evidence otherwise admissible. A court is being given an express discretion to exclude evidence when the circumstance to which Deputy Rabbitte referred, namely, cross-examination, has arisen, and the opportunity to exercise the right to controvert, formulated here in terms of cross-examination. There is an additional reference to legal representation as a factor which can be taken into account. The discretion is further strengthened by the express provision in paragraph (b) of any other respects in which the taking of the evidence may have differed from the taking of comparable evidence in the State.
I accept that the formula which it is proposed to insert in subsection (10) leaves a residual discretion in the judge who has the statement to admit the evidence. However, in evidential matters, it is better to respect the discretion of the courts, which they must have in these matters, rather than provide for a rigid exclusionary principle for which Deputy Rabbitte's amendment provides.
It seems that there is more than a nuance of difference between the Minister's rebuttal and the amendment I have moved. This amendment would very clearly establish in the legislation that this particular right would be respected and that if it was not respected, clearly, the evidence would not be admissible.
The Deputy wants an absolute rule of exclusion. While I am essentially proposing a discretionary right to exclude, he is urging an absolute rule of exclusion in respect of contravention of --
Does that generally apply in the law of evidence?
It depends on the circumstances. For example, if evidence is obtained in breach of constitutional rights, an absolute rule of exclusion can apply in our domestic law of evidence.
I will examine what the Minister says. It is true that I did not read subsection (10) as carefully as I might have or in that context, given the serious matters with which we are dealing. I do not want the evidential burden to be such that evidence in all circumstances would be inadmissible if this was not complied with. I would like to have another look at it.
Amendment, by leave, withdrawn.
Section 48, as amended, agreed to.
SECTION 49.
I move amendment No. 140:
In page 51, subsection (3), line 32, after "instrument" to insert "or specified in the letter of request".
Amendment agreed to.
Section 49, as amended, agreed to.
Sections 50 to 52, inclusive, agreed to.
SECTION 53.
I move amendment No. 141:
In page 55, subsection (2), line 22, after "trial" to insert "at a sitting of the court".
Amendment agreed to.
Section 53, as amended, agreed to.
Sections 54 to 58, inclusive, agreed to.
SECTION 59.
I move amendment No. 142:
In page 58, subsection (1), line 38, after "judge" to insert "at a sitting".
Amendment agreed to.
I move amendment No. 143:
In page 59, subsection (6), line 31, after "that" to insert the following:
"permitted by the relevant international instrument or".
Amendment agreed to.
Section 59, as amended, agreed to.
SECTION 60.
I move amendment No. 144:
In page 60, subsection (5)(a), line 27, after “that” to insert the following:
"permitted by the relevant international instrument or".
Amendment agreed to.
I move amendment No. 145:
In page 60, subsection (7), lines 39 and 40, to delete "a judge of the District Court" and substitute the following:
"the judge of the District Court for the district where the place concerned is situated".
Amendment agreed to.
Amendments Nos. 146 to 148, inclusive, and 153 to 156, inclusive, are related. Amendments Nos. 146 to 148, inclusive, and amendments Nos. 153 to 156, inclusive, will be discussed together.
I move amendment No. 146:
In page 60, subsection (8), line 44, to delete paragraph (a).
These are drafting improvements in respect of searches and production orders. Deputy Rabbitte has proposed the same amendments in both amendments Nos. 146 and 154 so there is no dispute or difference between us on those issues.
I agree. There is no point in making a fuss about it.
Amendment agreed to.
I move amendment No. 147:
In page 61, subsection (11)(b), line 37, after ” paragraph (a)“ to insert ” and subsection (14)”.
Amendment agreed to.
I move amendment No. 148:
In page 62, between lines 15 and 16, to insert the following subsection:
"(14) Where-
(a) material has been supplied to a Government department or other authority by or on behalf of the government of another state, and
(b) an undertaking was given that the material would be used only for a particular purpose or purposes,
an order under this section does not have the effect of requiring or permitting the production of, or the giving of access to, the material for any other purpose without the consent of that government.".
Amendment agreed to.
Section 60, as amended, agreed to.
SECTION 61.
I move amendment No. 149:
In page 62, subsection (4), line 43, after "request" to insert "from a member state".
Amendment agreed to.
I move amendment No. 150:
In page 62, subsection (4), lines 45 and 46, to delete "the member state concerned" and substitute "that state".
Amendment agreed to.
I move amendment No. 151:
In page 63, subsection (6)(a), line 9, after “that” to insert the following:
"permitted by the relevant international instrument or".
Amendment agreed to.
I move amendment No. 152:
In page 63, subsection (8), lines 21 and 22, to delete "a judge of the District Court" and substitute the following:
"the judge of the District Court for the district where the evidential material is situated".
Amendment agreed to.
I move amendment No. 153:
In page 63, subsection (8), line 22, to delete "subsection (9)" and substitute "subsection (10)".
Amendment agreed to.
I move amendment No. 154:
In page 63, subsection (9), line 26, to delete paragraph (a).
Amendment agreed to.
I move amendment No. 155:
In page 63, subsection (9), to delete lines 33 to 37 and substitute the following:
"the judge may make an order under subsection (10).”.
Amendment agreed to.
I move amendment No. 156:
In page 63, lines 38 to 47 and in page 64, lines 1 to 11, to delete subsections (10) to (14) and substitute the following:
"(10) An order under this subsection-
(a) shall require any person who appears to the judge to be in possession of the evidential material—
(i) to produce it to a named member of the Garda Síochána so that he or she may take it away, or
(ii) to give the member access to it, either immediately or within a period specified in the order,
(b) may, if the order relates to evidential material at any place and on application by a member of the Garda Síochána, require any person who appears to the judge to be entitled to grant entry to the place to allow the member to enter it to obtain access to the material,
(c) shall authorise such a member, if the person who is so required to grant entry to the place does not do so-
(i) to enter the place, accompanied by such other members or persons or both as the member thinks necessary, on production if so requested of the order and, if necessary, by the use of reasonable force,
(ii) to search the place and any persons present there,
(iii) to access, examine, seize, take away and retain any evidential material which is found at the place or in the possession of a person so present and which the member reasonably believes to be the material concerned, and
(iv) to take such other steps as appear to the member to be necessary for preserving the evidential material and preventing interference with it.
(11) Where the evidential material consists of information contained in a computer, an order under this section has effect as an order to produce the material, or to give access to it, in a form which is legible and comprehensible or can be made so and in which it can be taken away.
(12) Such an order-
(a) in so far as it may empower a member of the Garda Síochána to take away a document or to be given access to it, authorises him or her to make a copy of it and to take the copy away,
(b) does not confer any right to production of, or access to, any evidential material subject to legal privilege, and
(c) subject to paragraph (b) and subsection (15), has effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.
(13) Any evidential material taken away by a member of the Garda Síochána under this section shall be dealt with in accordance with the request.
(14) A judge of the District Court may at a sitting of the Court vary or discharge an order under this section on the application of a member of the Garda Síochána or of any person to whom the order relates.
(15) A member searching a place under the authority of an order under subsection (10) may—
(a) require any person present at the place where the search is being carried out to give his or her name and address to the member, and
(b) arrest without warrant any person who—
(i) obstructs or attempts to obstruct the member in carrying out his or her duties,
(ii) fails to comply with a requirement under paragraph (a), or
(iii) gives a name or address which the member has reasonable cause for believing is false or misleading.
(16) A person who—
(a) obstructs or attempts to obstruct a member of the Garda Síochána acting under the authority of an order under this section,
(b) fails to comply with a requirement in an order under this section, or
(c) gives a false or misleading name or address to a member,
is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.".
Amendment agreed to.
Section 61, as amended, agreed to.
Sections 62 to 65, inclusive, agreed to.
SECTION 66.
Amendments Nos. 158 to 160, inclusive, are related to amendment No. 157. Amendments Nos. 157 to 160, inclusive, will be discussed together.
I move amendment No. 157:
In page 69, subsection (4)(b), to delete lines 15 to 19 and substitute the following:
"(i) a notice stating that-
(I) no measure of restraint or punishment may be enforced directly by the court in the territory of the other state, and
(II) the person to be served may obtain information regarding his or her rights or obligations concerning the document from the court or a specified person or authority,".
These amendments deal with the service of documents. Amendment No. 157 rewords the section providing that a person served with a document requiring his or her presence at proceedings may obtain information on his or her rights and obligations regarding the document served.
Amendment No. 158 is a technical amendment providing that a document requiring service in a designated state may be served by post.
Amendment No. 159 deals with the translation of documents sent to Ireland for personal service and corrects an oversight in the current provision. The amendment provides that translation must be into Irish or English and into another language if the person only understands that language.
Amendment No. 160 is proposed by Deputy Rabbitte. I am concerned that the effect of inserting this amendment would be to impose timescales on other states when documents are served here on their behalf. It is that state's responsibility and its interest to ensure sufficient time is given to the person to enable him or her to attend a hearing in that state.
This is a very reasonable point. This section concerns the serving of documents. Where there is a request for service on a person in the State, requiring that person to appear as a defendant or witness in criminal proceedings in another state, it is reasonable that the person be given reasonable time. My amendment states: "Where a document served pursuant to this section directs or requests the person to whom it is addressed to attend a hearing in a designated state, the document shall be served a reasonable time prior to the hearing in the designated state concerned". The amendment discussed by my colleagues in the Seanad had a particular requirement of 14 days and the Minister did not want to be in a straitjacket in this regard. We have amended it accordingly.
One might be in the position of being a witness required to appear in another country and be given unreasonable notice to so do that would cause severe disruption or inadequate preparation. The Minister suggested it was the task of the other state to ensure this process is done fairly. Tell that to a person who finds himself in this position. The safeguard proposed is reasonable in all circumstances. We should take care that reasonable time is given to comply.
The form of the amendment appears to impose an obligation on another state, which we do not normally do in legislation. If a request is received shortly before the hearing in the other state, as often happens, we do our best to serve it but, under section 68(7), there is no obligation on the person to attend a hearing if so requested by another state. If the document is served without sufficient notice the person would be most unlikely to attend. The person could jeopardise himself in the law of the requesting state by his failure to attend the hearing. That is the question that Deputy Rabbitte raises.
It is a very real fear.
There is no prejudice to the person in Irish law, which is clear in the legislation.
I accept that.
In such circumstances an extradition request would be refused on foot of a consequential offence in the requesting state, given the short period of time. The question remains that the person may have prejudiced himself in the law of the requesting state. The extent to which it is the function of Ireland to prevent that is a difficult issue in the consideration of this section.
One does not have much difficulty envisaging circumstances in which a person seeking to serve a document on one of the Minister's constituents in a gated community in Dublin 15 might find it less than convenient and less than effective on the first and second visits, as those compiling the electoral register have found. We have a duty to ensure that a designated state should act reasonably and give reasonable time to a person who might want to co-operate and put himself under hazard in another jurisdiction. The person could find himself in considerable difficulty.
The difficulty is that the international instruments do not envisage a role for us in correcting the defects of law or procedure that may exist in requesting states.
Do the international instruments veto Ireland taking reasonable care in this regard?
I will have to take advice on that matter.
Is it agreed that we consider this on Report Stage?
Yes. It is reasonable and I hope the Minister is not just pouring treacle on my head.
I never pour treacle on the Deputy's head. I notice he has been suggesting in the public domain that I do that. His point is reasonable and worth examining but I see international complications.
To say that there would be international complications because we require the serving state to provide reasonable time is going a bit far.
We expect them to honour our letters also. I must be sure that anything we do does not inhibit our capacity to send letters to them.
Amendment agreed to.
Section 66, as amended, agreed to.
SECTION 67.
I move amendment No. 158:
In page 70, subsection (1), line 3, after "served" to insert "in a designated state".
Amendment agreed to.
Section 67, as amended, agreed to.
SECTION 68.
I move amendment No. 159:
In page 70, lines 31 to 36, to delete subsection (3) and substitute the following:
"(3) Where the request is for personal service, the document, if not in Irish or English, shall be accompanied-
(a) by a translation of the document, or of the material parts of it, into either of those languages, and
(b) if it is known that the person understands only another language or languages, by such a translation into that other language or one of those other languages.”.
Amendment agreed to.
I move amendment No. 160:
In page 72, between lines 12 and 13, to insert the following subsection:
"(13) Where a document served pursuant to this section directs or requests the person to whom it is addressed to attend a hearing in a designated state, the document shall be served a reasonable time prior to the hearing in the designated state concerned.".
Amendment, by leave, withdrawn.
Section 68, as amended, agreed to.
NEW SECTION.
I move amendment No. 161:
161. In page 72, before section 69, to insert the following new section:
"CHAPTER 2
Examining objects and sites
69.-(1) A request for the examination of an object or site in a designated state for the purposes of a criminal investigation or criminal proceedings may be sent by the Director of Public Prosecutions either to the Central Authority for transmission to the appropriate authority in the designated state or directly to that authority.
(2) A request from a designated state for the examination of an object or site for such purposes may be sent by the Minister to the Commissioner of the Garda Síochána to arrange for the request to be complied with.
(3) A request under this section shall include a description of the object or site that is sufficient to enable it to be clearly identified.
(4) Section 60 shall apply and have effect in relation to such a request with the modification that, where necessary, a warrant may be issued under subsection (8) of that section requiring the owner or occupier of the object or site to allow access to it by a member of the Garda Síochána and such other persons as may accompany the member for the purposes of the examination and with any other necessary modifications.
(5) Subsection (4) is without prejudice to section 81.”.
This is a new section, which provides for requests to be made for an object or site to be examined in a designated state for the purposes of criminal proceedings or criminal investigation and for requests for such to be forwarded to Ireland. The amendment is proposed on the advice of the Attorney General for the purpose of giving effect to the UN Convention against Corruption and the UN Convention against Transnational Organised Crime.
Amendment agreed to.
Sections 69 to 75, inclusive, agreed to.
SECTION 76.
Amendments Nos. 162 and 164 are related and may be discussed together.
I move amendment No. 162:
In page 76, line 22, after "2004" to insert the following:
", as amended by section 80 of the Criminal Justice (Mutual Assistance) Act 2007”.
Amendment No. 164 provides for the joint investigation teams envisaged in the Criminal Justice (Joint Investigation Teams) Act 2004 to include investigation teams with designated states as well as with EU member states. Amendment No. 162 is for clarification purposes only and deals with section 76, which amends the Garda Síochána Act 1989 by reference to joint investigation teams.
Amendment agreed to.
Section 76, as amended, agreed to.
Sections 77 to 79, inclusive, agreed to.
NEW SECTIONS.
I move amendment No. 163:
In page 78, before section 80, but in Part 9, to insert the following new section:
80.-(1) The national unit designated under the Europol Act 1997 is deemed to be the specialised service within the Garda Síochána referred to in Article 2(1) of the 2005 Council Decision and has the functions assigned under that Article to such a service.
(2) The Minister may, in accordance with Article 2(2) of the 2005 Council Decision, designate an authority or authorities as the Eurojust national correspondent for terrorism matters, and the authority so designated has the functions assigned under that Article to such a correspondent.".
This amendment gives effect to the aspects of the Council decision on the exchange of information and co-operation concerning terrorist offences which require legislative effect. Article 2(1) of the Council decision provides that each member state must designate a specialised service within its police service or other law enforcement authority which shall have access to and collect all relevant information concerning criminal investigations with respect to terrorist offences and that it shall send such information to Eurojust. Article 2(2) of the Council decision provides for each member state to designate at least one authority which shall have access to and collect information regarding prosecutions and convictions relating to terrorist offences. The authority will be the Eurojust national correspondent and shall send the relevant collected information to Eurojust.
Section 3 of the Europol Act 1997 provides for the unit within the Garda Síochána to be established for the purposes of that Act. The Europol national unit is the name of the designated unit within the Garda Síochána which operates that section. It operates under the control of and general superintendence of the Garda Commissioner and the day-to-day management of the Europol national unit is with the chief superintendent at liaison and protection.
Amendment agreed to.
Amendment No. 164 has already been discussed with amendment No. 162. Acceptance of this amendment involves the deletion of section 80 of the Bill.
I move amendment No. 164:
In page 78, before section 80, but in Part 9, to insert the following new section:
80.-(1) The Criminal Justice (Joint Investigation Teams) Act 2004 applies and has effect, with the necessary modifications, as if references in it to another Member State or other such States included references to a designated state or states (other than a member state or states).
(2) Section 9 (participants in joint investigation teams) of the said Act of 2004 is amended-
(a) in subsection (1), by the substitution of the following paragraph for paragraph (d):
"(d) one or more officers designated by an authority of a designated state (other than a Member State or part of such a State) within the meaning of the Criminal Justice (Mutual Assistance) Act 2007,”
and
(b) by the deletion of subsections (5) and (6).”.
Amendment agreed to.
Section 80 deleted.
NEW SECTIONS.
Amendments Nos. 166 and 167 are related. Amendments Nos. 165 to 167, inclusive, will be discussed together.
I move amendment No. 165:
In page 78, before section 81, to insert the following new section:
81.-(1) The Minister may, at the instance of the designated state concerned, authorise a representative of the authority concerned in that state (in this section referred to as "the representative") to be present at the place where its request is being executed by a member or members of the Garda Síochána.
(2) Such an authorisation may be subject to such conditions as the Minister may determine.
(3) The presence of the representative at any such place does not require the consent of the person affected by the execution of the request.
(4) The representative, while so present-
(a) shall be subject to the direction of the member or members executing the request,
(b) have access to the same places and objects (including documents) as that member or those members, and
(c) may be authorised to put or propose questions and suggest measures of investigation.
(5) The representative shall not disclose, in breach of the rights of the person affected by the execution of the request, confidential information resulting from his or her presence, except to any other such representative or representatives and to his or her authorities.".
These amendments arise from the decision to give effect to the Bill to additional international instruments and, in particular, the mutual legal assistance provisions in Title 3 of the EC-Swiss Confederation agreement. I have previously indicated that the decision to include this instrument in the Bill gave rise to very few amendments as most of Title 3 is included in the Bill on foot of other instruments. One area that has involved further provision is that involving the presence of authorities of another country when a request is being executed. That is being dealt with in these amendments.
Amendment agreed to.
I move amendment No. 166:
In page 78, before section 81, to insert the following new section:
82.-Where a member of the Garda Síochána is authorised by the relevant authority in a designated state to be present at the execution of a request-
(a) the member shall not disclose, in breach of judicial confidentiality or the rights of the person affected by the execution of the request, information resulting from his or her presence, except to any other member, and
(b) any such information may not be admitted as evidence in any proceedings until a decision on transmission of the documents relating to execution has acquired the force of res judicata in the designated state.”.
Amendment agreed to.
I move amendment No. 167:
In page 78, before section 81, to insert the following new section:
83.-Information or evidence obtained in response to a request by a court or the Director of Public Prosecutions may not be used for purposes other than those for which the request was made unless such use is in accordance with the relevant international instrument.".
Amendment agreed to.
Sections 81 and 82 agreed to.
SECTION 83.
Amendments Nos. 169 to 172, inclusive, are related. Amendments Nos. 168 to 172, inclusive, will be discussed together.
I move amendment No. 168:
In page 79, subsection (1)(a)(iii), line 33, to delete “or” and substitute the following:
"(iv) a record of the date and mode of service of a document in a designated state, or".
These amendments were inserted at the request of the Garda Síochána. They were concerned that while current legislation permits the service of documents outside the State, there is no reference in relation to the criteria required to prove service. The District Court rules provide that proof of service may be given in court orally or by means of a statutory declaration as to service. At present, the Garda Síochána, when requesting service of documents abroad, ask the person effecting service to complete a statutory declaration that service has been completed. However, the fact that the Statutory Declarations Act 1938 does not apply to declarations made abroad could mean that this procedure is open to challenge. Therefore, the amendments include records relating to the date and mode of service, the list of documents that may be admissible without further proof of the matters mentioned in them.
Amendment No. 169 contains a clarification that the documents referred to shall be admissible as proof if signed by or on behalf of the court or tribunal concerned or by an authority appearing to be competent to do so. The amendments are designed to ease proof of service.
Amendment No. 170 sets out a new subsection relating to the proof of the identity of item and the integrity as well as the continuity of the custody.
Amendment agreed to.
I move amendment No. 169:
In page 79, subsection (1), lines 38 and 39, to delete paragraph (b) and substitute the following:
"(b) to be signed by or on behalf of the court or tribunal concerned or an authority appearing to be competent to do so,”.
Amendment agreed to.
I move amendment No. 170:
In page 79, after line 41, to insert the following subsection:
"(2) A document purporting to-
(a) relate to-
(i) the identity of an item required as evidence in criminal proceedings or for the purposes of a criminal investigation,
(ii) the continuity of its custody, or
(iii) the integrity of its condition, and
(b) to be signed by a person appearing to have responsibility for custody of the item,
is admissible, without further proof, as evidence of the matters mentioned in the document.".
Amendment agreed to.
I move amendment No. 171:
In page 80, subsection (2)(a), line 3, after “ subsection (1)” to insert “ or (2)”.
Amendment agreed to.
I move amendment No. 172:
In page 80, subsection (3), line 8, after "subsection (1)” to insert “or (2) ”.
Amendment agreed to.
Section 83, as amended, agreed to.
SECTION 84.
Amendments Nos. 174 to 176, inclusive, are related to amendment No. 173. Amendments Nos. 173 to 176, inclusive, will be discussed together.
I move amendment No. 173:
In page 80, subsection (1)(b), lines 25 and 26, to delete all words from and including “under” in line 25 down to and including “Convention” in line 26 and substitute the following:
"in accordance with the relevant international instrument".
These amendments relate to provisional measures or interim orders made by a court when a person is charged but not yet convicted or is under investigation. Provisional measures are a feature of Article 24 of the second additional protocol, hence the reference in that Article to section 84, as it stands. However, provisional measures are also included in the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism and in Article 29 of the Swiss agreement. As the Bill is now giving effect to these instruments also, amendment No.173 changes the reference in this section to "in accordance with the relevant international instrument".
Amendment No. 174 is technical in nature and amendment No. 175 is included for clarity. It provides that where provisional measures are granted or made subject to conditions by the court, the court must have regard to the provisions of the relevant international instrument.
Amendment agreed to.
I move amendment No. 174:
In page 80, subsection (1)(b), line 28, to delete “Article” and substitute “instrument”.
Amendment agreed to.
I move amendment No. 175:
In page 80, subsection (3), line 36, after "Court" to insert the following:
", having had regard to the provisions of the relevant international instrument,".
Amendment agreed to.
Deputy Rabbitte will move amendment No. 176 and I do not have treacle to pour on him.
Ever the bitter word. I move amendment No. 176:
In page 80, lines 37 to 40, to delete subsection (4).
All I am seeking to do is elicit an explanation, rather than molasses, from the Minister. Subsection (4) appears to be meaningless and to be designed to discourage judges from operating the section. I do not understand what other purpose it has. The purpose of my amendment is to excise that subsection.
The subsection is similar to section 13(2) of the Jurisdiction of Courts and Enforcement of Judgements Act 1998. In effect, it directs the court to have regard to whether the order being sought by virtue of the section is a reasonable order to make in terms of the jurisdiction of the court. It is important that the court has this ability as orders can be sought by the Minister and the Garda Síochána. It is not sufficient to presume that the making of the application itself constitutes an adequate examination of the ability to make the order. It is important to send the legislative signal that the presiding judge is the only person capable of making a decision as to the extent of the powers of the court with regard to any application. Given the number of international instruments now involved, it is desirable that we send a legislative signal to the Judiciary in that regard.
Amendment, by leave, withdrawn.
Section 84, as amended, agreed to.
NEW SECTION.
I move amendment No. 177:
In page 80, before section 85, to insert the following new section:
85.-(1) A court, when having regard under this Act to the rights of third parties, may, and shall if so required by the relevant international instrument, recognise any decision relating to those rights made by a court or tribunal in the designated state concerned.
(2) Such recognition may be refused if-
(a) the third parties did not have an adequate opportunity to assert their rights,
(b) the decision is irreconcilable with a court decision already made in the State in regard to those rights, or
(c) it is contrary to public policy (ordre public).
This amendment inserts a new section dealing with third party rights. The section is proposed following the decision to include in the Bill the mutual assistance provisions of the Council of Europe convention on laundering, search, seizure and confiscation of the proceeds of crime and on the financing of terrorism. Article 32 of that convention deals with third party rights and provides that the requested party must recognise any judicial decision taken in the requesting state regarding rights claimed by third parties. This is provided at subsection (1) of the proposed new section. The grounds for refusal at subsection (2) of the new section are based on the convention.
Amendment agreed to.
SECTION 85.
Amendments Nos. 178 and 179 are related and will be discussed together.
I move amendment No. 178:
In page 81, lines 46 to 47 and in page 82, lines 1 to 17, to delete paragraph (h) and substitute the following:
(h) by the substitution of the following section for section 63:
63.-(1) For the purposes of an investigation into whether a person has engaged in criminal conduct or criminal proceedings in relation thereto, a member of the Garda Síochána may apply for an order under subsection (3) of this section in relation to any particular material or material of a particular description to a judge of the District Court for the district where the material is situated.
(2) On such an application the judge may make an order under subsection (3) of this section, if satisfied-
(a) that there are reasonable grounds for suspecting that the person has engaged in criminal conduct,
(b) that the material concerned is likely to be of substantial value (whether by itself or together with other material) for the purposes of such investigation or proceedings, and
(c) that there are reasonable grounds for believing that material should be produced or that access to it should be given, having regard to the benefit likely to accrue to the investigation or proceedings and any other relevant circumstances.
(3) An order under this subsection-
(a) shall require any person who appears to the judge to be in possession of the material-
(i) to produce it to a named member of the Garda Síochána so that he or she may take it away, or
(ii) to give the member access to it within 7 days, unless it appears to the judge that another period would be appropriate in the particular circumstances of the case,
(b) may, if the order relates to material at any place and on application by the member concerned, require any person who appears to the judge to be entitled to grant entry to the place to allow the member to enter it to obtain access to the material,
(c) shall authorise the member, if the person so required to grant entry to the place does not do so-
(i) to enter the place, accompanied by such other members or persons or both as the member thinks necessary, on production if so requested of the order and, if necessary, by the use of reasonable force,
(ii) to search the place and any persons present there,
(iii) to take away the material, and
(iv) to take such other steps as appear to the member to be necessary for preserving the material and preventing interference with it.
(4) Where the material consists of information contained in a computer, an order under subsection (3) of this section shall have effect as an order to produce the material, or to give access to it, in a form which is legible and comprehensible or can be made so and in which it can be taken away.
(5) Such an order-
(a) in so far as it may empower a member to take away a document or to be given access to it, shall authorise him or her to make a copy of it and to take the copy away,
(b) shall not confer any right to production of, or access to, any material subject to legal privilege, and
(c) subject to paragraph (b) of this subsection and subsection (10) of this section, shall have effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.
(6) Any material taken away by a member under this section may be retained by him or her for use as evidence in any proceedings.
(7) A judge of the District Court may at a sitting of the Court vary or discharge an order under this section on the application of a member or any person to whom the order relates.
(8) A member searching a place under the authority of an order under this section may-
(a) require any person present at the place where the search is being carried out to give his or her name and address to the member, and
(b) arrest without warrant any person who-
(i) obstructs or attempts to obstruct the member in the carrying out of his or her duties,
(ii) fails to comply with a requirement under paragraph (a) of this subsection, or
(iii) gives a name or address which the member has reasonable cause to believe is false or misleading.
(9) A person who-
(a) obstructs or attempts to obstruct a member acting under the authority of an order under this section,
(b) fails to comply with a requirement under subsection (3)(a) of this section, or
(c) gives a false or misleading name or address to a member,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
(10) Where-
(a) material has been supplied to a Government department or other authority by or on behalf of the government of another state, and
(b) an undertaking was given that the material would be used only for a particular purpose or purposes,
an order under subsection (3) of this section shall not have the effect of requiring or permitting the production of, or the giving of access to, the material for any other purpose without the consent of that government.
(11) In this section-
"criminal conduct" means-
(a) drug trafficking,
(b) the commission of an indictable offence or more than one such offence,
(c) holding funds subject to confiscation,
(d) benefiting from-
(i) drug trafficking,
(ii) an indictable offence or more than one such offence,
(iii) assets or proceeds deriving from criminal conduct or the receipt or control of such assets or proceeds, including conduct which occurs outside the State and which would constitute an indictable offence or more than one such offence-
(I) if it occurred in the State, and
(II) if it constituted an offence or more than one such offence under the law of the state or territory concerned.
This amendment relates to later provisions of the same section. The point of section 85 is to amend the Criminal Justice Act 1994. Amendment 178 deletes the proposed new section 63(h) of the Act and inserts an alternative which is based on, but broader than, the current text.
Amendment agreed to.
It is 5 p.m. but we only have a few amendments to cover. Amendment No. 179 has already been discussed with amendment No. 178.
I move amendment No. 179:
In page 82, between lines 17 and 18, to insert the following subsection:
"(2) The amendments effected by subsection (1) shall not affect any order made prior to the commencement of this section, but on or after the commencement of this section, the court may make such amendment to such order, or such further order, as may be appropriate in the circumstances.”.
This amendment seeks to insert a new subsection at the end of the section on page 82.
This is an issue of retrospectivity, similar to the issue raised by the Deputy in his previous amendment.
The issue of a change in nomenclature also arises. Is this possible in circumstances where the court has already ruled on the term? The difference is between a restraint order and a freezing order. What is the effect of the new nomenclature on restraint orders which have already been made?
I understand it is regulated by section 27 of the Interpretation Act 2005, which provides that the repeal of an enactment does not affect the previous operation of the enactment or anything done under it. Likewise, the amendment of a provision does not affect anything done previously under the provision. That covers the point the Deputy is seeking to raise in the amendment.
If our citizen has a conviction, or is the accused in circumstances where he has assets outside Ireland, our court has jurisdiction but does the power exist, as a result of enacting this legislation, to enforce it in the other jurisdiction?
We already have that power under the 1994 Act. The change of nomenclature is from "restraint" to "freezing".
Amendment, by leave, withdrawn.
Question proposed: "That section 85, as amended, stand part of the Bill."
Why is there a specific reference in the existing section 85 that an order under the section may relate to property in a member state of the European Union? Why does it specify the European Union?
Is the Deputy talking to the section?
Yes, it is in section 85(e).
These are amendments to the Criminal Justice Act 1994.
The Bill so far does not designate a state within the European Union, it could be Switzerland or elsewhere. I am curious as to why we revert to the European Union here.
Amendment No. 177 is a new section 85 but Deputy Rabbitte is speaking to the existing section 85 generally, which relates to the Criminal Justice Act 1994.
Is the European Union Specified in that Act?
Yes.
If we pass this section does it mean a request coming from Switzerland or some other non-EU state would not have the force of law here?
The Minister may wish to review the section and revisit it on Report Stage.
We cannot speak to an amendment on Report Stage. We will have to find the answer.
Depending on the Minister's reply I intend to give notice of an amendment for Report Stage, but there may be a simple explanation.
There is a simple explanation. This section goes back to 1994 and relates to freezing orders only within the EU. Adequate provision is made elsewhere in the legislation to deal with freezing orders regarding Switzerland. Parts IV and V and the new amendments we inserted in them today deal with the issue of freezing property in Switzerland, so Deputy Treacy need not worry that Switzerland is not covered because of the wording of section 85.
It may not cover a provisional measure.
Does it mean that a request can come from Switzerland but we cannot freeze property therein?
No, we have amended this legislation today expressly for that circumstance, but we have done so elsewhere than section 85.
The amendment is adding to section 24 of the 1995 Act a new subsection that covers the EU. What is added on Committee Stage can be removed on Report Stage if needed.
Yes.
A Deputy
However, it will not be.
I did not catch the Vice Chairman's statement.
The amendment is adding to section 24 of the 1994 Criminal Justice Act a new subsection that covers the EU.
Excellent.
That is right.
That is very sensible and fully supported.
What is added on Committee Stage can be removed on Report Stage if needed.
Perfect.
Question put and agreed to.
Section 86 agreed to.
NEW SECTION.
This amendment has already been discussed with amendment No. 48.
I move amendment No. 180:
In page 82, before section 87, to insert the following new section:
87.-Section 32A of the Courts (Supplemental Provisions) Act 1961 applies, with any necessary modifications, in relation to the exercise by a judge of the District Court of the power to make an order under section 60(8), 61(9) or 72(1) of this Act or under subsection (2) of section 63 (as substituted by section 85(h) of this Act) of the Act of 1994.”.
Amendment agreed to.
Sections 87 to 89, inclusive, agreed to.
SCHEDULE 1.
Amendments Nos. 181 to 195, inclusive, are related and will be discussed together.
I move amendment No. 181:
In page 83, to delete lines 4 to 9 and substitute the following:
"TEXT OF 2000 CONVENTION".
These are technical amendments to the Schedules by referring to the various international instruments which are now incorporated in the legislation. The current Schedule 6 to the Bill needs to be deleted as I am reinserting it by way of amendment No. 189, which includes the text of Articles 49 and 51 of the Schengen Convention. The reconfiguration of the Schedules has required the text to be moved so I propose the deletion of Schedule 6.
Amendment agreed to.
I move amendment No. 182:
In page 83, line 10, before "established" to insert "Convention".
Amendment agreed to.
Schedule 1, as amended, agreed to.
SCHEDULE 2.
I move amendment No. 183:
In page 103, to delete lines 35 to 38 and substitute the following:
"TEXT OF 2001 PROTOCOL".
Amendment agreed to.
I move amendment No. 184:
In page 103, line 39, before "established" to insert "Protocol".
Amendment agreed to.
Schedule 2, as amended, agreed to.
SCHEDULE 3.
I move amendment No. 185:
In page 110, to delete lines 22 to 27 and substitute the following:
"TEXT OF AGREEMENT WITH ICELAND AND NORWAY".
Amendment agreed to.
Schedule 3, as amended, agreed to.
SCHEDULE 4.
I move amendment No. 186:
In page 115, before the fourth Schedule, to insert the following new Schedule:
"SCHEDULE 4
TEXT OF ARTICLES 49 AND 51 OF SCHENGEN CONVENTION
Article 49
Mutual assistance shall also be afforded:
(a) in proceedings brought by the administrative authorities in respect of acts which are punishable under the national law of one of the two Contracting Parties, or of both, 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;
(b) in proceedings for claims for damages arising from wrongful prosecution or conviction;
(c) in clemency proceedings;
(d) in civil actions joined to criminal proceedings, as long as the criminal court has not yet taken a final decision in the criminal proceedings;
(e) in the service of judicial documents relating to the enforcement of a sentence or a preventive measure, the imposition of a fine or the payment of costs for proceedings;
(f) in respect of measures relating to the deferral of delivery or suspension of enforcement of a sentence or a preventive measure, to conditional release or to a stay or interruption of enforcement of a sentence or a preventive measure.
Article 51
The Contracting Parties may not make the admissibility of letters rogatory for search or seizure dependent on conditions other than the following:
(a) the act giving rise to the letters rogatory is punishable under the law of both Contracting Parties by a penalty involving deprivation of liberty or a detention order of a maximum period of at least six months, or is punishable under the law of one of the two Contracting Parties by an equivalent penalty and under the law of the other Contracting Party by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters;
(b) execution of the letters rogatory is consistent with the law of the requested Contracting Party.".
Amendment agreed to.
I move amendment No. 187:
In page 115, to delete lines 12 to 16 and substitute the following:
"TEXT OF FRAMEWORK DECISION".
Amendment agreed to.
Schedule 4, as amended, agreed to.
NEW SCHEDULES.
I move amendment No. 188:
In page 129, before the fifth Schedule, to insert the following new Schedule:
"SCHEDULE 5
TEXT OF TITLE III OF EC/SWISS CONFEDERATION AGREEMENT
TITLE III
MUTUAL LEGAL ASSISTANCE
ARTICLE 25
Relationship with other Agreements
1. The provisions of this Title are intended to supplement the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990, and to facilitate their implementation between the Contracting Parties.
2. More favourable provisions of bilateral or multilateral Agreements between the Contracting Parties are not affected.
ARTICLE 26
Procedures in which mutual legal assistance shall also be afforded
1. Mutual legal assistance shall also be afforded:
(a) in proceedings brought by the administrative authorities in respect of acts which are punishable under the national law of one of the two Contracting Parties, or of both, 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;
(b) in civil actions joined to criminal proceedings, as long as the criminal court has not yet taken a final decision in the criminal proceedings;
(c) for offences or infringements for which a legal person of the requesting Contracting Party may be liable.
2. Assistance shall also be given for the purposes of investigations and proceedings for the seizure and confiscation of the instruments and products of these illegal activities.
ARTICLE 27
Transmission of requests
1. Requests under this Title shall be presented by the authority of the requesting Contracting Party either via a relevant central authority of the requested Contracting Party, or direct to the Contracting Party's authority which is empowered to execute the requesting Contracting Party's request. The authority of the requesting Contracting Party and, where appropriate, the authority of the Contracting Party requested shall send a copy of the request to its central authority for information.
2. All documents relating to requests or the execution thereof may be sent by the same channels. They, or at least a copy, must be sent directly to the authority of the requesting Contracting Party.
3. If the authority of the Contracting Party receiving a request has no power to authorise assistance, it shall forthwith forward it to the competent authority.
4. Defective or incomplete requests shall be applied if they contain the information needed to satisfy them, without prejudice to subsequent regularisation by the authority of the requesting Contracting Party. The authority of the Contracting Party requested shall inform the authority of the requesting Contracting Party of the defects and allow it time to regularise them. The authority of the Contracting Party requested shall without delay send the authority of the requesting Contracting Party all other indications that may help it to complete its request or extend it to include other measures.
5. The Contracting Parties, when making the notification provided for by Article 44(2), shall announce which are the competent central authorities for the purposes of this Article.
ARTICLE 28
Service by post
1. As a rule the Contracting Parties shall, in proceedings for illegal activities covered by this Agreement, send procedural documents intended for persons who are in the territory of the other Contracting Party directly by post.
2. If the authority of the Contracting Party that issued the documents knows or has reason to believe that the addressee understands only some other language, the documents, or at least the most important passages thereof, shall be accompanied by a translation into that other language.
3. The authority of the serving Contracting Party shall advise the addressee that no measure of restraint or punishment may be enforced directly by that authority in the territory of the other Contracting Party.
4. All procedural documents shall be accompanied by a report indicating that the addressee may obtain information from the authority identified in the report regarding his or her rights and obligations concerning the documents.
ARTICLE 29
Provisional measures
1. Within the limits of its domestic law and its respective powers and at the request of the authority of the requesting Contracting Party, the competent authority of the requested Contracting Party shall order the necessary provisional measures for the purpose of maintaining an existing situation, protecting endangered legal interests or preserving evidence, if the request for mutual assistance does not appear manifestly inadmissible.
2. Preventive freezing and seizure of instrumentalities and proceeds of offences shall be ordered in cases where assistance is requested. If the proceeds of an offence no longer exist in whole or in part, the same measures shall be ordered in relation to assets located within the territory of the requested Contracting Party corresponding in value to the proceeds in question.
ARTICLE 30
Presence of the authorities of the requesting Contracting Party
1. The requested Contracting Party shall, at the request of the requesting Contracting Party, authorise the representatives of the latter Party's authorities to attend the execution of the request for mutual legal assistance. Their presence shall not require the consent of the person concerned by the measure.
Conditions may be attached to the authorisation.
2. The persons present shall have access to the same premises and the same documents as the representatives of the requested Contracting Party, through them and for the sole purposes of execution of the request for mutual legal assistance. In particular they may be authorised to put or propose questions and suggest measures of investigation.
3. Their presence shall not result in facts being divulged to persons other than those authorised by virtue of the preceding paragraphs in breach of judicial confidentiality or the rights of the person concerned. The information brought to the knowledge of the authority of the requesting Contracting Party may not be used as evidence until the decision on transmission of the documents relating to execution has acquired the force of res judicata.
ARTICLE 31
Searches and seizures
1. The Contracting Parties may not make the admissibility of letters rogatory for search or seizure dependent on conditions other than the following:
(a) the act giving rise to the letters rogatory is punishable under the law of both Contracting Parties by a penalty involving deprivation of liberty or a detention order of a maximum period of at least six months, or is punishable under the law of one of the two Contracting Parties by an equivalent penalty and under the law of the other Contracting Party by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters;
(b) execution of the letters rogatory is consistent with the law of the requested Contracting Party.
2. Letters rogatory for purposes of search and seizure for laundering offences within the scope of this Agreement shall also be admissible provided that the activities making up the precursor offence are punishable under the law of the two Contracting Parties by a penalty involving deprivation of liberty or a detention order of a maximum period of more than six months.
ARTICLE 32
Requests for banking and financial information
1. Where the conditions of Article 31 are met, the requested Contracting Party shall execute requests for assistance in obtaining and transmitting banking and financial information, including:
(a) the identification of, and information concerning, bank accounts opened at banks established in its territory and where persons under investigation are the account holders, authorised signatories or in effective control;
(b) the identification of, and all information concerning, banking transactions and operations conducted from, to or via one or more bank accounts or by specified persons during a specified period.
2. To the extent authorised by virtue of its law governing criminal proceedings for similar domestic cases, the requested Contracting Party may order surveillance of banking operations conducted from, to or via one or more bank accounts or by specified persons during a specified period, and transmission of the results to the requesting Contracting Party. The decision to monitor transactions and transmit the results shall be taken in each individual case by the competent authorities of the requested Contracting Party and shall comply with that Contracting Party's national law. The practical details regarding the monitoring shall be determined by agreement between the competent authorities of the requesting and requested Contracting Parties.
3. Each Contracting Party shall take the necessary measures to ensure the financial institutions do not disclose to the customer concerned or to other third persons that measures are being executed at the request of the requesting Contracting Party or that an investigation is under way, for such time as is necessary to avoid compromising the results.
4. The authority of the Contracting Party issuing the request shall:
(a) state why it considers that the requested information is likely to be of substantial value for the purpose of the investigation into the offence;
(b) state on what grounds it presumes that banks in the requested Contracting Party hold the account and, to the extent available, which banks may be involved;
(c) include all information available which may facilitate the execution of the request.
5. A Contracting Party shall not invoke banking secrecy as grounds for rejecting all cooperation on a request for mutual assistance from another Contracting Party.
ARTICLE 33
Controlled deliveries
1. The competent authority in the requested Contracting Party shall undertake to ensure that, at the request of the authority of the requesting Contracting Party, controlled deliveries may be permitted in its territory within the framework of criminal investigations into extraditable offences.
2. The decision to carry out controlled deliveries shall be taken in each individual case by the competent authorities of the requested Contracting Party, with due regard for its national law.
3. Controlled deliveries shall take place in accordance with the procedures provided for in the law of the requested Contracting Party. The right to act and to direct and control operations shall lie with the competent authorities of that Contracting Party.
ARTICLE 34
Handing-over for confiscation or return
1. At the request of the requesting Contracting Party, all objects, documents, funds or other items of value that have been seized on a precautionary basis may be handed over for confiscation or for return to the rightful owner.
2. The requested Contracting Party may not refuse to return funds on the sole ground that they correspond to a tax or customs debt.
3. Rights asserted by a third party in good faith shall remain reserved.
ARTICLE 35
Speeding up assistance
1. The authority of the requested Contracting Party shall execute the request for mutual legal assistance as soon as possible, taking as full account as possible of the procedural deadlines and other deadlines indicated by the authority of the requesting Contracting Party. The requesting Contracting Party shall explain the reasons for the deadline.
2. If the request cannot, or cannot fully, be executed in accordance with the requirements set by the authority of the requesting Contracting Party, the authority of the requested Contracting Party shall promptly inform the authority of the requesting Contracting Party and indicate the conditions under which it might be possible to execute the request. The authorities of the requesting and the requested Contracting Parties may subsequently agree on further action to be taken concerning the request, where necessary by making such action subject to the fulfilment of those conditions.
If it is foreseeable that the deadline set by the authority of the requesting Contracting Party for executing its request cannot be met and if the reasons referred to in the second sentence of paragraph 1, indicate explicitly that any delay will lead to substantial impairment of the proceedings being conducted by that authority, the authority of the requested Contracting Party shall promptly indicate the estimated time needed for execution of the request. The authority of the requesting Contracting Party shall promptly indicate whether the request is to be upheld nonetheless. The authorities of the requesting and requested Contracting Parties may subsequently agree on further action to be taken concerning the request.
ARTICLE 36
Use of information and evidence
Information and evidence transmitted in the course of the assistance procedure may be used for the following purposes in addition to the purposes of the assistance procedure for which it was supplied:
(a) in criminal proceedings in the requesting Contracting Party against other persons who participated in the commission of the offence for which assistance was given;
(b) where the infringements on which the request is based constitute another offence for which assistance ought also to be given;
(c) in proceedings for the confiscation of the instrumentalities and proceeds of offences for which assistance ought to be given and in proceedings for damages in respect of infringements for which assistance had been given.
ARTICLE 37
Spontaneous transmission
1. Within the limits of their national law and their powers, the judicial authorities of a Contracting Party may spontaneously transmit information or evidence to the judicial authorities of another Contracting Party, when they consider that such information or evidence might assist the receiving Contracting Party's authority in initiating or carrying out investigations or proceedings, or might lead to a request for mutual legal assistance by the receiving authority.
2. The authority of the Contracting Party transmitting the information may, pursuant to its national law, impose conditions on the use of such information by the authority of the receiving Contracting Party.
3. All the authorities of the Contracting Parties shall be bound by such conditions.
ARTICLE 38
Procedures in the requested Contracting Party
The request for assistance shall be without prejudice to such rights as the requesting Contracting Party may enjoy as a result of its status as "partie civile" in domestic judicial criminal proceedings commenced before the authorities of the requested Contracting Party.".
Amendment agreed to.
I move amendment No. 189:
In page 129, before the fifth Schedule, insert the following new Schedule:
"SCHEDULE 6
TEXT OF 2005 COUNCIL DECISION
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Articles 29, 30(1), 31 and 34(2)(c) thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Parliament1,
Whereas:
(1) At its extraordinary meeting on 21 September 2001, the European Council stated that terrorism was a real challenge to the world and to Europe and that the fight against terrorism would be a priority objective of the European Union.
(2) On 19 October 2001 the European Council stated that it was determined to combat terrorism in every form throughout the world and that it would continue its efforts to strengthen the coalition of the international community to combat terrorism in every shape and form, for example by increased cooperation between the operational services responsible for combating terrorism: Europol, Eurojust, the intelligence services, police forces and judicial authorities.
(3) It is essential in the fight against terrorism for the relevant services to have the fullest and most up-to-date information possible in their respective fields. The Member States' specialised national services, the judicial authorities and relevant bodies of the European Union such as Europol and Eurojust absolutely need information if they are to perform their tasks.
(4) Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP2 is a major step forward. The persistence of the terrorist threat and the complexity of the phenomenon raise the need for ever greater exchanges of information. The scope of information exchanges must be extended to all stages of criminal proceedings, including convictions, and to all persons, groups or entities investigated, prosecuted or convicted for terrorist offences.
(5) Since the objectives of this decision cannot be sufficiently achieved by the Member States acting alone and can therefore, given the need for reciprocity, be better achieved at Community level, the Community may adopt measures, act in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Decision does not go beyond what is necessary to achieve those objectives.
(6) In the execution of the exchange of information, this Decision is without prejudice to essential national security interests, and it should not jeopardise the safety of individuals or the success of a current investigation or specific intelligence activities in the field of State security.
(7) This Decision respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union,
HAS DECIDED AS FOLLOWS:
Article 1
Definitions
For the purposes of this Decision, the following definitions shall apply:
(a) ‘terrorist offences': the offences specified in Articles 1, 2 and 3 of Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism;
(b) ‘Europol Convention': the Convention of 26 July 1995 on the establishment of a European Police Office;
(c) ‘Eurojust Decision': Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime;
(d) ‘group or entity': ‘terrorist groups' within the meaning of Article 2 of Council Framework Decision 2002/475/JHA and the groups and entities listed in the Annex to Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism.
Article 2
Provision of information concerning terrorist offences to Eurojust, Europol and the Member States
1. Each Member State shall designate a specialised service within its police services or other law enforcement authorities, which, in accordance with national law, will have access to and collect all relevant information concerning and resulting from criminal investigations conducted by its law enforcement authorities with respect to terrorist offences and send it to Europol in accordance with paragraphs 3 and 4.
2. Each Member State shall designate one, or where its legal system so provides more than one authority, as Eurojust national correspondent for terrorism matters or an appropriate judicial or other competent authority which, in accordance with national law, shall have access to and can collect all relevant information concerning prosecutions and convictions for terrorist offences and send it to Eurojust in accordance with paragraph 5.
3. Each Member State shall take the necessary measures to ensure that at least the information referred to in paragraph 4 concerning criminal investigations and the information referred to in paragraph 5 concerning prosecutions and convictions for terrorist offences which affect or may affect two or more Member States, gathered by the relevant authority, is transmitted to:
(a) Europol, in accordance with national law and with the provisions of the Europol Convention, for processing; and
(b) Eurojust, in accordance with national law and where the provisions of the Eurojust Decision so allow.
4. The information to be transmitted in accordance with paragraph 3 to Europol shall be the following:
(a) data which identify the person, group or entity;
(b) acts under investigation and their specific circumstances;
(c) the offence concerned;
(d) links with other relevant cases;
(e) the use of communication technologies;
(f) the threat posed by the possession of weapons of mass destruction.
5. The information to be transmitted in accordance with paragraph 3 to Eurojust shall be the following:
(a) data which identify the person, group or entity that is the object of a criminal investigation or prosecution;
(b) the offence concerned and its specific circumstances;
(c) information about final convictions for terrorist offences and the specific circumstances surrounding those offences;
(d) links with other relevant cases;
(e) requests for judicial assistance, including letters rogatory, addressed to or by another Member State and the response.
6. Each Member State shall take the necessary measures to ensure that any relevant information included in documents, files, items of information, objects or other means of evidence, seized or confiscated in the course of criminal investigations or criminal proceedings in connection with terrorist offences can be made accessible as soon as possible, taking account of the need not to jeopardise current investigations, to the authorities of other interested Member States in accordance with national law and relevant international legal instruments where investigations are being carried out or might be initiated or where prosecutions are in progress in connection with terrorist offences.
Article 3
Joint investigation teams
In appropriate cases Member States shall take the necessary measures to set up joint investigation teams to conduct criminal investigations into terrorist offences.
Article 4
Requests for judicial assistance and enforcement of judgments
Each Member State shall take the necessary measures to ensure that requests from other Member States for mutual legal assistance and recognition and enforcement of judgments in connection with terrorist offences are dealt with as a matter of urgency and are given priority.
Article 5
Repeal of existing provisions
Decision 2003/48/JHA is hereby repealed.
Article 6
Implementation
Member States shall take the necessary measures to comply with the provisions of this Decision at the latest by 30 June 2006.
Article 7
Territorial Application
This Decision shall apply to Gibraltar.
Article 8
Entry into force
This Decision shall take effect on the day following its publication in the Official Journal of the European Union.
Done at Brussels, 20 September 2005.
For the Council
The President
M. BECKETT".
Amendment agreed to.
SCHEDULE 5.
I move amendment No. 190:
In page 130, to delete lines 2 to 6 and substitute the following:
"TEXT OF SECOND ADDITIONAL PROTOCOL TO 1959 CONVENTION".
Amendment agreed to.
Schedule 5, as amended, agreed to.
NEW SCHEDULES.
I move amendment No. 191:
In page 147, before the sixth Schedule, to insert the following new Schedule:
"SCHEDULE 6
TEXT OF CHAPTER IV OF 2005 CONVENTION
Chapter IV - International co-operation
Section 1 - Principles of international co-operation
Article 15 - General principles and measures for international co-operation
1 The Parties shall mutually co-operate with each other to the widest extent possible for the purposes of investigations and proceedings aiming at the confiscation of instrumentalities and proceeds.
2 Each Party shall adopt such legislative or other measures as may be necessary to enable it to comply, under the conditions provided for in this chapter, with requests:
a for confiscation of specific items of property representing proceeds or instrumentalities, as well as for confiscation of proceeds consisting in a requirement to pay a sum of money corresponding to the value of proceeds;
b for investigative assistance and provisional measures with a view to either form of confiscation referred to under a above.
3 Investigative assistance and provisional measures sought in paragraph 2.b shall be carried out as permitted by and in accordance with the internal law of the requested Party. Where the request concerning one of these measures specifies formalities or procedures which are necessary under the law of the requesting Party, even if unfamiliar to the requested Party, the latter shall comply with such requests to the extent that the action sought is not contrary to the fundamental principles of its law.
4 Each Party shall adopt such legislative or other measures as may be necessary to ensure that the requests coming from other Parties in order to identify, trace, freeze or seize the proceeds and instrumentalities, receive the same priority as those made in the framework of internal procedures.
Section 2 - Investigative assistance
Article 16 - Obligation to assist
The Parties shall afford each other, upon request, the widest possible measure of assistance in the identification and tracing of instrumentalities, proceeds and other property liable to confiscation. Such assistance shall include any measure providing and securing evidence as to the existence, location or movement, nature, legal status or value of the aforementioned property.
Article 17 - Requests for information on bank accounts
1 Each Party shall, under the conditions set out in this article, take the measures necessary to determine, in answer to a request sent by another Party, whether a natural or legal person that is the subject of a criminal investigation holds or controls one or more accounts, of whatever nature, in any bank located in its territory and, if so, provide the particulars of the identified accounts.
2 The obligation set out in this article shall apply only to the extent that the information is in the possession of the bank keeping the account.
3 In addition to the requirements of Article 37, the requesting party shall, in the request:
a state why it considers that the requested information is likely to be of substantial value for the purpose of the criminal investigation into the offence;
b state on what grounds it presumes that banks in the requested Party hold the account and specify, to the widest extent possible, which banks and/or accounts may be involved; and
c include any additional information available which may facilitate the execution of the request.
4 The requested Party may make the execution of such a request dependant on the same conditions as it applies in respect of requests for search and seizure.
5 Each State or the European Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that this article applies only to the categories of offences specified in the list contained in the appendix to this Convention.
6 Parties may extend this provision to accounts held in non-bank financial institutions. Such extension may be made subject to the principle of reciprocity.
Article 18 - Requests for information on banking transactions
1 On request by another Party, the requested Party shall provide the particulars of specified bank accounts and of banking operations which have been carried out during a specified period through one or more accounts specified in the request, including the particulars of any sending or recipient account.
2 The obligation set out in this Article shall apply only to the extent that the information is in the possession of the bank holding the account.
3 In addition to the requirements of Article 37, the requesting Party shall in its request indicate why it considers the requested information relevant for the purpose of the criminal investigation into the offence.
4 The requested Party may make the execution of such a request dependant on the same conditions as it applies in respect of requests for search and seizure.
5 Parties may extend this provision to accounts held in non-bank financial institutions. Such extension may be made subject to the principle of reciprocity.
Article 19 - Requests for the monitoring of banking transactions
1 Each Party shall ensure that, at the request of another Party, it is able to monitor, during a specified period, the banking operations that are being carried out through one or more accounts specified in the request and communicate the results thereof to the requesting Party.
2 In addition to the requirements of Article 37, the requesting Party shall in its request indicate why it considers the requested information relevant for the purpose of the criminal investigation into the offence.
3 The decision to monitor shall be taken in each individual case by the competent authorities of the requested Party, with due regard for the national law of that Party.
4 The practical details regarding the monitoring shall be agreed between the competent authorities of the requesting and requested Parties.
5 Parties may extend this provision to accounts held in non-bank financial institutions.
Article 20 - Spontaneous information
Without prejudice to its own investigations or proceedings, a Party may without prior request forward to another Party information on instrumentalities and proceeds, when it considers that the disclosure of such information might assist the receiving Party in initiating or carrying out investigations or proceedings or might lead to a request by that Party under this chapter.
Section 3 - Provisional measures
Article 21 - Obligation to take provisional measures
1 At the request of another Party which has instituted criminal proceedings or proceedings for the purpose of confiscation, a Party shall take the necessary provisional measures, such as freezing or seizing, to prevent any dealing in, transfer or disposal of property which, at a later stage, may be the subject of a request for confiscation or which might be such as to satisfy the request.
2 A Party which has received a request for confiscation pursuant to Article 23 shall, if so requested, take the measures mentioned in paragraph 1 of this article in respect of any property which is the subject of the request or which might be such as to satisfy the request.
Article 22 - Execution of provisional measures
1 After the execution of the provisional measures requested in conformity with paragraph 1 of Article 21, the requesting Party shall provide spontaneously and as soon as possible to the requested Party all information which may question or modify the extent of these measures. The requesting Party shall also provide without delays all complementary information requested by the requested Party and which is necessary for the implementation of and the follow up to the provisional measures.
2 Before lifting any provisional measure taken pursuant to this article, the requested Party shall, wherever possible, give the requesting Party an opportunity to present its reasons in favour of continuing the measure.
Section 4 - Confiscation
Article 23 - Obligation to confiscate
1 A Party, which has received a request made by another Party for confiscation concerning instrumentalities or proceeds, situated in its territory, shall:
a enforce a confiscation order made by a court of a requesting Party in relation to such instrumentalities or proceeds; or
b submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, enforce it.
2 For the purposes of applying paragraph 1.b of this article, any Party shall whenever necessary have competence to institute confiscation proceedings under its own law.
3 The provisions of paragraph 1 of this article shall also apply to confiscation consisting in a requirement to pay a sum of money corresponding to the value of proceeds, if property on which the confiscation can be enforced is located in the requested Party. In such cases, when enforcing confiscation pursuant to paragraph 1, the requested Party shall, if payment is not obtained, realise the claim on any property available for that purpose.
4 If a request for confiscation concerns a specific item of property, the Parties may agree that the requested Party may enforce the confiscation in the form of a requirement to pay a sum of money corresponding to the value of the property.
5 The Parties shall co-operate to the widest extent possible under their domestic law with those Parties which request the execution of measures equivalent to confiscation leading to the deprivation of property, which are not criminal sanctions, in so far as such measures are ordered by a judicial authority of the requesting Party in relation to a criminal offence, provided that it has been established that the property constitutes proceeds or other property in the meaning of Article 5 of this Convention.
Article 24 - Execution of confiscation
1 The procedures for obtaining and enforcing the confiscation under Article 23 shall be governed by the law of the requested Party.
2 The requested Party shall be bound by the findings as to the facts in so far as they are stated in a conviction or judicial decision of the requesting Party or in so far as such conviction or judicial decision is implicitly based on them.
3 Each State or the European Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 2 of this article applies only subject to its constitutional principles and the basic concepts of its legal system.
4 If the confiscation consists in the requirement to pay a sum of money, the competent authority of the requested Party shall convert the amount thereof into the currency of that Party at the rate of exchange ruling at the time when the decision to enforce the confiscation is taken.
5 In the case of Article 23, paragraph 1.a, the requesting Party alone shall have the right to decide on any application for review of the confiscation order.
Article 25 - Confiscated property
1 Property confiscated by a Party pursuant to Articles 23 and 24 of this Convention, shall be disposed of by that Party in accordance with its domestic law and administrative procedures.
2 When acting on the request made by another Party in accordance with Articles 23 and 24 of this Convention, Parties shall, to the extent permitted by domestic law and if so requested, give priority consideration to returning the confiscated property to the requesting Party so that it can give compensation to the victims of the crime or return such property to their legitimate owners.
3 When acting on the request made by another Party in accordance with Articles 23 and 24 of this Convention, a Party may give special consideration to concluding agreements or arrangements on sharing with other Parties, on a regular or case-by-case basis, such property, in accordance with its domestic law or administrative procedures.
Article 26 - Right of enforcement and maximum amount of confiscation
1 A request for confiscation made under Articles 23 and 24 does not affect the right of the requesting Party to enforce itself the confiscation order.
2 Nothing in this Convention shall be so interpreted as to permit the total value of the confiscation to exceed the amount of the sum of money specified in the confiscation order. If a Party finds that this might occur, the Parties concerned shall enter into consultations to avoid such an effect.
Article 27 - Imprisonment in default
The requested Party shall not impose imprisonment in default or any other measure restricting the liberty of a person as a result of a request under Article 23, if the requesting Party has so specified in the request.
Section 5 - Refusal and postponement of co-operation
Article 28 - Grounds for refusal
1 Co-operation under this chapter may be refused if:
a the action sought would be contrary to the fundamental principles of the legal system of the requested Party; or
b the execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of the requested Party; or
c in the opinion of the requested Party, the importance of the case to which the request relates does not justify the taking of the action sought; or
d the offence to which the request relates is a fiscal offence, with the exception of the financing of terrorism;
e the offence to which the request relates is a political offence, with the exception of the financing of terrorism; or
f the requested Party considers that compliance with the action sought would be contrary to the principle of ”ne bis in idem”; or
g the offence to which the request relates would not be an offence under the law of the requested Party if committed within its jurisdiction. However, this ground for refusal applies to co-operation under Section 2 only in so far as the assistance sought involves coercive action. Where dual criminality is required for co-operation under this chapter, that requirement shall be deemed to be satisfied regardless of whether both Parties place the offence within the same category of offences or denominate the offence by the same terminology, provided that both Parties criminalise the conduct underlying the offence.
2. Co-operation under Section 2, in so far as the assistance sought involves coercive action, and under Section 3 of this chapter, may also be refused if the measures sought could not be taken under the domestic law of the requested Party for the purposes of investigations or proceedings, had it been a similar domestic case.
3. Where the law of the requested Party so requires, co-operation under Section 2, in so far as the assistance sought involves coercive action, and under Section 3 of this chapter may also be refused if the measures sought or any other measures having similar effects would not be permitted under the law of the requesting Party, or, as regards the competent authorities of the requesting Party, if the request is not authorised by either a judge or another judicial authority, including public prosecutors, any of these authorities acting in relation to criminal offences.
4. Co-operation under Section 4 of this chapter may also be refused if:
a under the law of the requested Party confiscation is not provided for in respect of the type of offence to which the request relates; or
b without prejudice to the obligation pursuant to Article 23, paragraph 3, it would be contrary to the principles of the domestic law of the requested Party concerning the limits of confiscation in respect of the relationship between an offence and:
i an economic advantage that might be qualified as its proceeds; or
ii property that might be qualified as its instrumentalities; or
c under the law of the requested Party confiscation may no longer be imposed or enforced because of the lapse of time; or
d without prejudice to Article 23, paragraph 5, the request does not relate to a previous conviction, or a decision of a judicial nature or a statement in such a decision that an offence or several offences have been committed, on the basis of which the confiscation has been ordered or is sought; or
e confiscation is either not enforceable in the requesting Party, or it is still subject to ordinary means of appeal; or
f the request relates to a confiscation order resulting from a decision rendered in absentia of the person against whom the order was issued and, in the opinion of the requested Party, the proceedings conducted by the requesting Party leading to such decision did not satisfy the minimum rights of defence recognised as due to everyone against whom a criminal charge is made.
5. For the purpose of paragraph 4.f of this article a decision is not considered to have been rendered in absentia if:
a it has been confirmed or pronounced after opposition by the person concerned; or
b it has been rendered on appeal, provided that the appeal was lodged by the person concerned.
6. When considering, for the purposes of paragraph 4.f of this article if the minimum rights of defence have been satisfied, the requested Party shall take into account the fact that the person concerned has deliberately sought to evade justice or the fact that that person, having had the possibility of lodging a legal remedy against the decision made in absentia, elected not to do so. The same will apply when the person concerned, having been duly served with the summons to appear, elected not to do so nor to ask for adjournment.
7. A Party shall not invoke bank secrecy as a ground to refuse any co-operation under this chapter. Where its domestic law so requires, a Party may require that a request for co-operation which would involve the lifting of bank secrecy be authorised by either a judge or another judicial authority, including public prosecutors, any of these authorities acting in relation to criminal offences.
8. Without prejudice to the ground for refusal provided for in paragraph 1.a of this article:
a the fact that the person under investigation or subjected to a confiscation order by the authorities of the requesting Party is a legal person shall not be invoked by the requested Party as an obstacle to affording any co-operation under this chapter;
b the fact that the natural person against whom an order of confiscation of proceeds has been issued has died or the fact that a legal person against whom an order of confiscation of proceeds has been issued has subsequently been dissolved shall not be invoked as an obstacle to render assistance in accordance with Article 23, paragraph 1.a;
c the fact that the person under investigation or subjected to a confiscation order by the authorities of the requesting Party is mentioned in the request both as the author of the underlying criminal offence and of the offence of money laundering, in accordance with Article 9.2.b of this Convention, shall not be invoked by the requested Party as an obstacle to affording any co-operation under this chapter.
Article 29 - Postponement
The requested Party may postpone action on a request if such action would prejudice investigations or proceedings by its authorities.
Article 30 - Partial or conditional granting of a request
Before refusing or postponing co-operation under this chapter, the requested Party shall, where appropriate after having consulted the requesting Party, consider whether the request may be granted partially or subject to such conditions as it deems necessary.
Section 6 - Notification and protection of third parties’ rights
Article 31 - Notification of documents
1 The Parties shall afford each other the widest measure of mutual assistance in the serving of judicial documents to persons affected by provisional measures and confiscation.
2 Nothing in this article is intended to interfere with:
a the possibility of sending judicial documents, by postal channels, directly to persons abroad;
b the possibility for judicial officers, officials or other competent authorities of the Party of origin to effect service of judicial documents directly through the consular authorities of that Party or through judicial officers, officials or other competent authorities of the Party of destination,
unless the Party of destination makes a declaration to the contrary to the Secretary General of the Council of Europe at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession.
3 When serving judicial documents to persons abroad affected by provisional measures or confiscation orders issued in the sending Party, this Party shall indicate what legal remedies are available under its law to such persons.
Article 32 - Recognition of foreign decisions
1 When dealing with a request for co-operation under Sections 3 and 4, the requested Party shall recognise any judicial decision taken in the requesting Party regarding rights claimed by third parties.
2 Recognition may be refused if:
a third parties did not have adequate opportunity to assert their rights; or
b the decision is incompatible with a decision already taken in the requested Party on the same matter; or
c it is incompatible with the ordre public of the requested Party; or
d the decision was taken contrary to provisions on exclusive jurisdiction provided for by the law of the requested Party.
Section 7 - Procedural and other general rules
Article 33 - Central authority
1 The Parties shall designate a central authority or, if necessary, authorities, which shall be responsible for sending and answering requests made under this chapter, the execution of such requests or the transmission of them to the authorities competent for their execution.
2 Each Party shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, communicate to the Secretary General of the Council of Europe the names and addresses of the authorities designated in pursuance of paragraph 1 of this article.
Article 34 - Direct communication
1 The central authorities shall communicate directly with one another.
2 In the event of urgency, requests or communications under this chapter may be sent directly by the judicial authorities, including public prosecutors, of the requesting Party to such authorities of the requested Party. In such cases a copy shall be sent at the same time to the central authority of the requested Party through the central authority of the requesting Party.
3 Any request or communication under paragraphs 1 and 2 of this article may be made through the International Criminal Police Organisation (Interpol).
4 Where a request is made pursuant to paragraph 2 of this article and the authority is not competent to deal with the request, it shall refer the request to the competent national authority and inform directly the requesting Party that it has done so.
5 Requests or communications under Section 2 of this chapter, which do not involve coercive action, may be directly transmitted by the competent authorities of the requesting Party to the competent authorities of the requested Party.
6 Draft requests or communications under this chapter may be sent directly by the judicial authorities of the requesting Party to such authorities of the requested Party prior to a formal request to ensure that it can be dealt with efficiently upon receipt and contains sufficient information and supporting documentation for it to meet the requirements of the legislation of the requested Party.
Article 35 - Form of request and languages
1 All requests under this chapter shall be made in writing. They may be transmitted electronically, or by any other means of telecommunication, provided that the requesting Party is prepared, upon request, to produce at any time a written record of such communication and the original. However each Party may, at any time, by a declaration addressed to the Secretary General of the Council of Europe, indicate the conditions in which it is ready to accept and execute requests received electronically or by any other means of communication.
2 Subject to the provisions of paragraph 3 of this article, translations of the requests or supporting documents shall not be required.
3 At the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, any State or the European Community may communicate to the Secretary General of the Council of Europe a declaration that it reserves the right to require that requests made to it and documents supporting such requests be accompanied by a translation into its own language or into one of the official languages of the Council of Europe or into such one of these languages as it shall indicate. It may on that occasion declare its readiness to accept translations in any other language as it may specify. The other Parties may apply the reciprocity rule.
Article 36 - Legalisation
Documents transmitted in application of this chapter shall be exempt from all legalisation formalities.
Article 37 - Content of request
1 Any request for co-operation under this chapter shall specify:
a the authority making the request and the authority carrying out the investigations or proceedings;
b the object of and the reason for the request;
c the matters, including the relevant facts (such as date, place and circumstances of the offence) to which the investigations or proceedings relate, except in the case of a request for notification;
d insofar as the co-operation involves coercive action:
i the text of the statutory provisions or, where this is not possible, a statement of the relevant law applicable; and
ii an indication that the measure sought or any other measures having similar effects could be taken in the territory of the requesting Party under its own law;
e where necessary and in so far as possible:
i details of the person or persons concerned, including name, date and place of birth, nationality and location, and, in the case of a legal person, its seat; and
ii the property in relation to which co-operation is sought, its location, its connection with the person or persons concerned, any connection with the offence, as well as any available information about other persons, interests in the property; and
f any particular procedure the requesting Party wishes to be followed.
2 A request for provisional measures under Section 3 in relation to seizure of property on which a confiscation order consisting in the requirement to pay a sum of money may be realised shall also indicate a maximum amount for which recovery is sought in that property.
3 In addition to the indications mentioned in paragraph 1, any request under Section 4 shall contain:
a in the case of Article 23, paragraph 1.a:
i a certified true copy of the confiscation order made by the court in the requesting Party and a statement of the grounds on the basis of which the order was made, if they are not indicated in the order itself;
ii an attestation by the competent authority of the requesting Party that the confiscation order is enforceable and not subject to ordinary means of appeal;
iii information as to the extent to which the enforcement of the order is requested; and
iv information as to the necessity of taking any provisional measures;
b in the case of Article 23, paragraph 1.b, a statement of the facts relied upon by the requesting Party sufficient to enable the requested Party to seek the order under its domestic law;
c when third parties have had the opportunity to claim rights, documents demonstrating that this has been the case.
Article 38 - Defective requests
1 If a request does not comply with the provisions of this chapter or the information supplied is not sufficient to enable the requested Party to deal with the request, that Party may ask the requesting Party to amend the request or to complete it with additional information.
2 The requested Party may set a time-limit for the receipt of such amendments or information.
3 Pending receipt of the requested amendments or information in relation to a request under Section 4 of this chapter, the requested Party may take any of the measures referred to in Sections 2 or 3 of this chapter.
Article 39 - Plurality of requests
1 Where the requested Party receives more than one request under Sections 3 or 4 of this chapter in respect of the same person or property, the plurality of requests shall not prevent that Party from dealing with the requests involving the taking of provisional measures.
2 In the case of plurality of requests under Section 4 of this chapter, the requested Party shall consider consulting the requesting Parties.
Article 40 - Obligation to give reasons
The requested Party shall give reasons for any decision to refuse, postpone or make conditional any co-operation under this chapter.
Article 41 - Information
1 The requested Party shall promptly inform the requesting Party of:
a the action initiated on a request under this chapter;
b the final result of the action carried out on the basis of the request;
c a decision to refuse, postpone or make conditional, in whole or in part, any co-operation under this chapter;
d any circumstances which render impossible the carrying out of the action sought or are likely to delay it significantly; and
e in the event of provisional measures taken pursuant to a request under Sections 2 or 3 of this chapter, such provisions of its domestic law as would automatically lead to the lifting of the provisional measure.
2 The requesting Party shall promptly inform the requested Party of:
a any review, decision or any other fact by reason of which the confiscation order ceases to be wholly or partially enforceable; and
b any development, factual or legal, by reason of which any action under this chapter is no longer justified.
3 Where a Party, on the basis of the same confiscation order, requests confiscation in more than one Party, it shall inform all Parties which are affected by an enforcement of the order about the request.
Article 42 - Restriction of use
1 The requested Party may make the execution of a request dependent on the condition that the information or evidence obtained will not, without its prior consent, be used or transmitted by the authorities of the requesting Party for investigations or proceedings other than those specified in the request.
2 Each State or the European Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by declaration addressed to the Secretary General of the Council of Europe, declare that, without its prior consent, information or evidence provided by it under this chapter may not be used or transmitted by the authorities of the requesting Party in investigations or proceedings other than those specified in the request.
Article 43 - Confidentiality
1 The requesting Party may require that the requested Party keep confidential the facts and substance of the request, except to the extent necessary to execute the request. If the requested Party cannot comply with the requirement of confidentiality, it shall promptly inform the requesting Party.
2 The requesting Party shall, if not contrary to basic principles of its national law and if so requested, keep confidential any evidence and information provided by the requested Party, except to the extent that its disclosure is necessary for the investigations or proceedings described in the request.
3 Subject to the provisions of its domestic law, a Party which has received spontaneous information under Article 20 shall comply with any requirement of confidentiality as required by the Party which supplies the information. If the other Party cannot comply with such requirement, it shall promptly inform the transmitting Party.
Article 44 - Costs
The ordinary costs of complying with a request shall be borne by the requested Party. Where costs of a substantial or extraordinary nature are necessary to comply with a request, the Parties shall consult in order to agree the conditions on which the request is to be executed and how the costs shall be borne.
Article 45 - Damages
1 When legal action on liability for damages resulting from an act or omission in relation to co-operation under this chapter has been initiated by a person, the Parties concerned shall consider consulting each other, where appropriate, to determine how to apportion any sum of damages due.
2 A Party which has become subject of a litigation for damages shall endeavour to inform the other Party of such litigation if that Party might have an interest in the case.".
Amendment agreed to.
I move amendment No. 192:
In page 147, before the sixth Schedule, to insert the following new Schedule:
"SCHEDULE 7
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.
Article 13
International cooperation for purposes of confiscation
1. A State Party that has received a request from another State Party having jurisdiction over an offence covered by this Convention for confiscation of proceeds of crime, property, equipment or other instrumentalities referred to in article 12, paragraph 1, of this Convention situated in its territory shall, to the greatest extent possible within its domestic legal system:
(a) Submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such an order is granted, give effect to it; or
(b) Submit to its competent authorities, with a view to giving effect to it to the extent requested, an order of confiscation issued by a court in the territory of the requesting State Party in accordance with article 12, paragraph 1, of this Convention insofar as it relates to proceeds of crime, property, equipment or other instrumentalities referred to in article 12, paragraph 1, situated in the territory of the requested State Party.
2. Following a request made by another State Party having jurisdiction over an offence covered by this Convention, the requested State Party shall take measures to identify, trace and freeze or seize proceeds of crime, property, equipment or other instrumentalities referred to in article 12, paragraph 1, of this Convention for the purpose of eventual confiscation to be ordered either by the requesting State Party or, pursuant to a request under paragraph 1 of this article, by the requested State Party.
3. The provisions of article 18 of this Convention are applicable, mutatis mutandis, to this article. In addition to the information specified in article 18, paragraph 15, requests made pursuant to this article shall contain:
(a) In the case of a request pertaining to paragraph 1(a) of this article, a description of the property to be confiscated and a statement of the facts relied upon by the requesting State Party sufficient to enable the requested State Party to seek the order under its domestic law;
(b) In the case of a request pertaining to paragraph 1(b) of this article, a legally admissible copy of an order of confiscation upon which the request is based issued by the requesting State Party, a statement of the facts and information as to the extent to which execution of the order is requested;
(c) In the case of a request pertaining to paragraph 2 of this article, a statement of the facts relied upon by the requesting State Party and a description of the actions requested.
4. The decisions or actions provided for in paragraphs 1 and 2 of this article shall be taken by the requested State Party in accordance with and subject to the provisions of its domestic law and its procedural rules or any bilateral or multilateral treaty, agreement or arrangement to which it may be bound in relation to the requesting State Party.
5. Each State Party shall furnish copies of its laws and regulations that give effect to this article and of any subsequent changes to such laws and regulations or a description thereof to the Secretary-General of the United Nations.
6. If a State Party elects to make the taking of the measures referred to in paragraphs 1 and 2 of this article conditional on the existence of a relevant treaty, that State Party shall consider this Convention the necessary and sufficient treaty basis.
7. Cooperation under this article may be refused by a State Party if the offence to which the request relates is not an offence covered by this Convention.
8. The provisions of this article shall not be construed to prejudice the rights of bona fide third parties.
9. States Parties shall consider concluding bilateral or multilateral treaties, agreements or arrangements to enhance the effectiveness of international cooperation undertaken pursuant to this article.
Article 14
Disposal of confiscated proceeds of crime or property
1. Proceeds of crime or property confiscated by a State Party pursuant to articles 12 or 13, paragraph 1, of this Convention shall be disposed of by that State Party in accordance with its domestic law and administrative procedures.
2. When acting on the request made by another State Party in accordance with article 13 of this Convention, States Parties shall, to the extent permitted by domestic law and if so requested, give priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party so that it can give compensation to the victims of the crime or return such proceeds of crime or property to their legitimate owners.
3. When acting on the request made by another State Party in accordance with articles 12 and 13 of this Convention, a State Party may give special consideration to concluding agreements or arrangements on:
(a) Contributing the value of such proceeds of crime or property or funds derived from the sale of such proceeds of crime or property or a part thereof to the account designated in accordance with article 30, paragraph 2(c), of this Convention and to intergovernmental bodies specializing in the fight against organized crime;
(b) Sharing with other States Parties, on a regular or case-by-case basis, such proceeds of crime or property, or funds derived from the sale of such proceeds of crime or property, in accordance with its domestic law or administrative procedures.
Article 18
Mutual legal assistance
1. States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention as provided for in article 3 and shall reciprocally extend to one another similar assistance where the requesting State Party has reasonable grounds to suspect that the offence referred to in article 3, paragraph 1(a) or (b), is transnational in nature, including that victims, witnesses, proceeds, instrumentalities or evidence of such offences are located in the requested State Party and that the offence involves an organized criminal group.
2. Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws, treaties, agreements and arrangements of the requested State Party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with article 10 of this Convention in the requesting State Party.
3. Mutual legal assistance to be afforded in accordance with this article may be requested for any of the following purposes:
(a) Taking evidence or statements from persons;
(b) Effecting service of judicial documents;
(c) Executing searches and seizures, and freezing;
(d) Examining objects and sites;
(e) Providing information, evidentiary items and expert evaluations;
(f) Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records;
(g) Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes;
(h) Facilitating the voluntary appearance of persons in the requesting State Party;
(i) Any other type of assistance that is not contrary to the domestic law of the requested State Party.
4. Without prejudice to domestic law, the competent authorities of a State Party may, without prior request, transmit information relating to criminal matters to a competent authority in another State Party where they believe that such information could assist the authority in undertaking or successfully concluding inquiries and criminal proceedings or could result in a request formulated by the latter State Party pursuant to this Convention.
5. The transmission of information pursuant to paragraph 4 of this article shall be without prejudice to inquiries and criminal proceedings in the State of the competent authorities providing the information. The competent authorities receiving the information shall comply with a request that said information remain confidential, even temporarily, or with restrictions on its use. However, this shall not prevent the receiving State Party from disclosing in its proceedings information that is exculpatory to an accused person. In such a case, the receiving State Party shall notify the transmitting State Party prior to the disclosure and, if so requested, consult with the transmitting State Party. If, in an exceptional case, advance notice is not possible, the receiving State Party shall inform the transmitting State Party of the disclosure without delay.
6. The provisions of this article shall not affect the obligations under any other treaty, bilateral or multilateral, that governs or will govern, in whole or in part, mutual legal assistance.
7. Paragraphs 9 to 29 of this article shall apply to requests made pursuant to this article if the States Parties in question are not bound by a treaty of mutual legal assistance. If those States Parties are bound by such a treaty, the corresponding provisions of that treaty shall apply unless the States Parties agree to apply paragraphs 9 to 29 of this article in lieu thereof. States Parties are strongly encouraged to apply these paragraphs if they facilitate cooperation.
8. States Parties shall not decline to render mutual legal assistance pursuant to this article on the ground of bank secrecy.
9. States Parties may decline to render mutual legal assistance pursuant to this article on the ground of absence of dual criminality. However, the requested State Party may, when it deems appropriate, provide assistance, to the extent it decides at its discretion, irrespective of whether the conduct would constitute an offence under the domestic law of the requested State Party.
10. A person who is being detained or is serving a sentence in the territory of one State Party whose presence in another State Party is requested for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for investigations, prosecutions or judicial proceedings in relation to offences covered by this Convention may be transferred if the following conditions are met:
(a) The person freely gives his or her informed consent;
(b) The competent authorities of both States Parties agree, subject to such conditions as those States Parties may deem appropriate.
11. For the purposes of paragraph 10 of this article:
(a) The State Party to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the State Party from which the person was transferred;
(b) The State Party to which the person is transferred shall without delay implement its obligation to return the person to the custody of the State Party from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both States Parties;
(c) The State Party to which the person is transferred shall not require the State Party from which the person was transferred to initiate extradition proceedings for the return of the person;
(d) The person transferred shall receive credit for service of the sentence being served in the State from which he or she was transferred for time spent in the custody of the State Party to which he or she was transferred.
12. Unless the State Party from which a person is to be transferred in accordance with paragraphs 10 and 11 of this article so agrees, that person, whatever his or her nationality, shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in the territory of the State to which that person is transferred in respect of acts, omissions or convictions prior to his or her departure from the territory of the State from which he or she was transferred.
13. Each State Party shall designate a central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either to execute them or to transmit them to the competent authorities for execution. Where a State Party has a special region or territory with a separate system of mutual legal assistance, it may designate a distinct central authority that shall have the same function for that region or territory. Central authorities shall ensure the speedy and proper execution or transmission of the requests received. Where the central authority transmits the request to a competent authority for execution, it shall encourage the speedy and proper execution of the request by the competent authority. The Secretary-General of the United Nations shall be notified of the central authority designated for this purpose at the time each State Party deposits its instrument of ratification, acceptance or approval of or accession to this Convention. Requests for mutual legal assistance and any communication related thereto shall be transmitted to the central authorities designated by the States Parties. This requirement shall be without prejudice to the right of a State Party to require that such requests and communications be addressed to it through diplomatic channels and, in urgent circumstances, where the States Parties agree, through the International Criminal Police Organization, if possible.
14. Requests shall be made in writing or, where possible, by any means capable of producing a written record, in a language acceptable to the requested State Party, under conditions allowing that State Party to establish authenticity. The Secretary-General of the United Nations shall be notified of the language or languages acceptable to each State Party at the time it deposits its instrument of ratification, acceptance or approval of or accession to this Convention. In urgent circumstances and where agreed by the States Parties, requests may be made orally, but shall be confirmed in writing forthwith.
15. A request for mutual legal assistance shall contain:
(a) The identity of the authority making the request;
(b) The subject matter and nature of the investigation, prosecution or judicial proceeding to which the request relates and the name and functions of the authority conducting the investigation, prosecution or judicial proceeding;
(c) A summary of the relevant facts, except in relation to requests for the purpose of service of judicial documents;
(d) A description of the assistance sought and details of any particular procedure that the requesting State Party wishes to be followed;
(e) Where possible, the identity, location and nationality of any person concerned; and
(f) The purpose for which the evidence, information or action is sought.
16. The requested State Party may request additional information when it appears necessary for the execution of the request in accordance with its domestic law or when it can facilitate such execution.
17. A request shall be executed in accordance with the domestic law of the requested State Party and, to the extent not contrary to the domestic law of the requested State Party and where possible, in accordance with the procedures specified in the request.
18. Wherever possible and consistent with fundamental principles of domestic law, when an individual is in the territory of a State Party and has to be heard as a witness or expert by the judicial authorities of another State Party, the first State Party may, at the request of the other, permit the hearing to take place by video conference if it is not possible or desirable for the individual in question to appear in person in the territory of the requesting State Party. States Parties may agree that the hearing shall be conducted by a judicial authority of the requesting State Party and attended by a judicial authority of the requested State Party.
19. The requesting State Party shall not transmit or use information or evidence furnished by the requested State Party for investigations, prosecutions or judicial proceedings other than those stated in the request without the prior consent of the requested State Party. Nothing in this paragraph shall prevent the requesting State Party from disclosing in its proceedings information or evidence that is exculpatory to an accused person. In the latter case, the requesting State Party shall notify the requested State Party prior to the disclosure and, if so requested, consult with the requested State Party. If, in an exceptional case, advance notice is not possible, the requesting State Party shall inform the requested State Party of the disclosure without delay.
20. The requesting State Party may require that the requested State Party keep confidential the fact and substance of the request, except to the extent necessary to execute the request. If the requested State Party cannot comply with the requirement of confidentiality, it shall promptly inform the requesting State Party.
21. Mutual legal assistance may be refused:
(a) If the request is not made in conformity with the provisions of this article;
(b) If the requested State Party considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests;
(c) If the authorities of the requested State Party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction;
(d) If it would be contrary to the legal system of the requested State Party relating to mutual legal assistance for the request to be granted.
22. States Parties may not refuse a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters.
23. Reasons shall be given for any refusal of mutual legal assistance.
24. The requested State Party shall execute the request for mutual legal assistance as soon as possible and shall take as full account as possible of any deadlines suggested by the requesting State Party and for which reasons are given, preferably in the request. The requested State Party shall respond to reasonable requests by the requesting State Party on progress of its handling of the request. The requesting State Party shall promptly inform the requested State Party when the assistance sought is no longer required.
25. Mutual legal assistance may be postponed by the requested State Party on the ground that it interferes with an ongoing investigation, prosecution or judicial proceeding.
26. Before refusing a request pursuant to paragraph 21 of this article or postponing its execution pursuant to paragraph 25 of this article, the requested State Party shall consult with the requesting State Party to consider whether assistance may be granted subject to such terms and conditions as it deems necessary. If the requesting State Party accepts assistance subject to those conditions, it shall comply with the conditions.
27. Without prejudice to the application of paragraph 12 of this article, a witness, expert or other person who, at the request of the requesting State Party, consents to give evidence in a proceeding or to assist in an investigation, prosecution or judicial proceeding in the territory of the requesting State Party shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in that territory in respect of acts, omissions or convictions prior to his or her departure from the territory of the requested State Party. Such safe conduct shall cease when the witness, expert or other person having had, for a period of fifteen consecutive days or for any period agreed upon by the States Parties from the date on which he or she has been officially informed that his or her presence is no longer required by the judicial authorities, an opportunity of leaving, has nevertheless remained voluntarily in the territory of the requesting State Party or, having left it, has returned of his or her own free will.
28. The ordinary costs of executing a request shall be borne by the requested State Party, unless otherwise agreed by the States Parties concerned. If expenses of a substantial or extraordinary nature are or will be required to fulfil the request, the States Parties shall consult to determine the terms and conditions under which the request will be executed, as well as the manner in which the costs shall be borne.
29. The requested State Party:
(a) Shall provide to the requesting State Party copies of government records, documents or information in its possession that under its domestic law are available to the general public;
(b) May, at its discretion, provide to the requesting State Party in whole, in part or subject to such conditions as it deems appropriate, copies of any government records, documents or information in its possession that under its domestic law are not available to the general public.
30. States Parties shall consider, as may be necessary, the possibility of concluding bilateral or multilateral agreements or arrangements that would serve the purposes of, give practical effect to or enhance the provisions of this article.
Article 19
Joint investigations
States Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States, the competent authorities concerned may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis. The States Parties involved shall ensure that the sovereignty of the State Party in whose territory such investigation is to take place is fully respected.
Article 20
Special investigative techniques
1. If permitted by the basic principles of its domestic legal system, each State Party shall, within its possibilities and under the conditions prescribed by its domestic law, take the necessary measures to allow for the appropriate use of controlled delivery and, where it deems appropriate, for the use of other special investigative techniques, such as electronic or other forms of surveillance and undercover operations, by its competent authorities in its territory for the purpose of effectively combating organized crime.
2. For the purpose of investigating the offences covered by this Convention, States Parties are encouraged to conclude, when necessary, appropriate bilateral or multilateral agreements or arrangements for using such special investigative techniques in the context of cooperation at the international level. Such agreements or arrangements shall be concluded and implemented in full compliance with the principle of sovereign equality of States and shall be carried out strictly in accordance with the terms of those agreements or arrangements.
3. In the absence of an agreement or arrangement as set forth in paragraph 2 of this article, decisions to use such special investigative techniques at the international level shall be made on a case-by-case basis and may, when necessary, take into consideration financial arrangements and understandings with respect to the exercise of jurisdiction by the States Parties concerned.
4. Decisions to use controlled delivery at the international level may, with the consent of the States Parties concerned, include methods such as intercepting and allowing the goods to continue intact or be removed or replaced in whole or in part.".
Amendment agreed to.
I move amendment No. 193:
In page 147, before the sixth Schedule, to insert the following new Schedule:
"SCHEDULE 8
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
Article 46
Mutual legal assistance
1. States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention.
2. Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws, treaties, agreements and arrangements of the requested State Party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with article 26 of this Convention in the requesting State Party.
3. Mutual legal assistance to be afforded in accordance with this article may be requested for any of the following purposes:
(a) Taking evidence or statements from persons;
(b) Effecting service of judicial documents;
(c) Executing searches and seizures, and freezing;
(d) Examining objects and sites;
(e) Providing information, evidentiary items and expert evaluations;
(f) Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records;
(g) Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes;
(h) Facilitating the voluntary appearance of persons in the requesting State Party;
(i) Any other type of assistance that is not contrary to the domestic law of the requested State Party;
(j) Identifying, freezing and tracing proceeds of crime in accordance with the provisions of chapter V of this Convention;
(k) The recovery of assets, in accordance with the provisions of chapter V of this Convention.
4. Without prejudice to domestic law, the competent authorities of a State Party may, without prior request, transmit information relating to criminal matters to a competent authority in another State Party where they believe that such information could assist the authority in undertaking or successfully concluding inquiries and criminal proceedings or could result in a request formulated by the latter State Party pursuant to this Convention.
5. The transmission of information pursuant to paragraph 4 of this article shall be without prejudice to inquiries and criminal proceedings in the State of the competent authorities providing the information. The competent authorities receiving the information shall comply with a request that said information remain confidential, even temporarily, or with restrictions on its use. However, this shall not prevent the receiving State Party from disclosing in its proceedings information that is exculpatory to an accused person. In such a case, the receiving State Party shall notify the transmitting State Party prior to the disclosure and, if so requested, consult with the transmitting State Party. If, in an exceptional case, advance notice is not possible, the receiving State Party shall inform the transmitting State Party of the disclosure without delay.
6. The provisions of this article shall not affect the obligations under any other treaty, bilateral or multilateral, that governs or will govern, in whole or in part, mutual legal assistance.
7. Paragraphs 9 to 29 of this article shall apply to requests made pursuant to this article if the States Parties in question are not bound by a treaty of mutual legal assistance. If those States Parties are bound by such a treaty, the corresponding provisions of that treaty shall apply unless the States Parties agree to apply paragraphs 9 to 29 of this article in lieu thereof. States Parties are strongly encouraged to apply those paragraphs if they facilitate cooperation.
8. States Parties shall not decline to render mutual legal assistance pursuant to this article on the ground of bank secrecy.
9. (a) A requested State Party, in responding to a request for assistance pursuant to this article in the absence of dual criminality, shall take into account the purposes of this Convention, as set forth in article 1;
(b) States Parties may decline to render assistance pursuant to this article on the ground of absence of dual criminality. However, a requested State Party shall, where consistent with the basic concepts of its legal system, render assistance that does not involve coercive action. Such assistance may be refused when requests involve matters of a de minimis nature or matters for which the cooperation or assistance sought is available under other provisions of this Convention;
(c) Each State Party may consider adopting such measures as may be necessary to enable it to provide a wider scope of assistance pursuant to this article in the absence of dual criminality.
10. A person who is being detained or is serving a sentence in the territory of one State Party whose presence in another State Party is requested for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for investigations, prosecutions or judicial proceedings in relation to offences covered by this Convention may be transferred if the following conditions are met:
(a) The person freely gives his or her informed consent;
(b) The competent authorities of both States Parties agree, subject to such conditions as those States Parties may deem appropriate.
11. For the purposes of paragraph 10 of this article:
(a) The State Party to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the State Party from which the person was transferred;
(b) The State Party to which the person is transferred shall without delay implement its obligation to return the person to the custody of the State Party from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both States Parties;
(c) The State Party to which the person is transferred shall not require the State Party from which the person was transferred to initiate extradition proceedings for the return of the person;
(d) The person transferred shall receive credit for service of the sentence being served in the State from which he or she was transferred for time spent in the custody of the State Party to which he or she was transferred.
12. Unless the State Party from which a person is to be transferred in accordance with paragraphs 10 and 11 of this article so agrees, that person, whatever his or her nationality, shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in the territory of the State to which that person is transferred in respect of acts, omissions or convictions prior to his or her departure from the territory of the State from which he or she was transferred.
13. Each State Party shall designate a central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either to execute them or to transmit them to the competent authorities for execution. Where a State Party has a special region or territory with a separate system of mutual legal assistance, it may designate a distinct central authority that shall have the same function for that region or territory. Central authorities shall ensure the speedy and proper execution or transmission of the requests received. Where the central authority transmits the request to a competent authority for execution, it shall encourage the speedy and proper execution of the request by the competent authority. The Secretary-General of the United Nations shall be notified of the central authority designated for this purpose at the time each State Party deposits its instrument of ratification, acceptance or approval of or accession to this Convention. Requests for mutual legal assistance and any communication related thereto shall be transmitted to the central authorities designated by the States Parties. This requirement shall be without prejudice to the right of a State Party to require that such requests and communications be addressed to it through diplomatic channels and, in urgent circumstances, where the States Parties agree, through the International Criminal Police Organization, if possible.
14. Requests shall be made in writing or, where possible, by any means capable of producing a written record, in a language acceptable to the requested State Party, under conditions allowing that State Party to establish authenticity. The Secretary-General of the United Nations shall be notified of the language or languages acceptable to each State Party at the time it deposits its instrument of ratification, acceptance or approval of or accession to this Convention. In urgent circumstances and where agreed by the States Parties, requests may be made orally but shall be confirmed in writing forthwith.
15. A request for mutual legal assistance shall contain:
(a) The identity of the authority making the request;
(b) The subject matter and nature of the investigation, prosecution or judicial proceeding to which the request relates and the name and functions of the authority conducting the investigation, prosecution or judicial proceeding;
(c) A summary of the relevant facts, except in relation to requests for the purpose of service of judicial documents;
(d) A description of the assistance sought and details of any particular procedure that the requesting State Party wishes to be followed;
(e) Where possible, the identity, location and nationality of any person concerned; and
(f) The purpose for which the evidence, information or action is sought.
16. The requested State Party may request additional information when it appears necessary for the execution of the request in accordance with its domestic law or when it can facilitate such execution.
17. A request shall be executed in accordance with the domestic law of the requested State Party and, to the extent not contrary to the domestic law of the requested State Party and where possible, in accordance with the procedures specified in the request.
18. Wherever possible and consistent with fundamental principles of domestic law, when an individual is in the territory of a State Party and has to be heard as a witness or expert by the judicial authorities of another State Party, the first State Party may, at the request of the other, permit the hearing to take place by video conference if it is not possible or desirable for the individual in question to appear in person in the territory of the requesting State Party. States Parties may agree that the hearing shall be conducted by a judicial authority of the requesting State Party and attended by a judicial authority of the requested State Party.
19. The requesting State Party shall not transmit or use information or evidence furnished by the requested State Party for investigations, prosecutions or judicial proceedings other than those stated in the request without the prior consent of the requested State Party. Nothing in this paragraph shall prevent the requesting State Party from disclosing in its proceedings information or evidence that is exculpatory to an accused person. In the latter case, the requesting State Party shall notify the requested State Party prior to the disclosure and, if so requested, consult with the requested State Party. If, in an exceptional case, advance notice is not possible, the requesting State Party shall inform the requested State Party of the disclosure without delay.
20. The requesting State Party may require that the requested State Party keep confidential the fact and substance of the request, except to the extent necessary to execute the request. If the requested State Party cannot comply with the requirement of confidentiality, it shall promptly inform the requesting State Party.
21. Mutual legal assistance may be refused:
(a) If the request is not made in conformity with the provisions of this article;
(b) If the requested State Party considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests;
(c) If the authorities of the requested State Party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction;
(d) If it would be contrary to the legal system of the requested State Party relating to mutual legal assistance for the request to be granted.
22. States Parties may not refuse a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters.
23. Reasons shall be given for any refusal of mutual legal assistance.
24. The requested State Party shall execute the request for mutual legal assistance as soon as possible and shall take as full account as possible of any deadlines suggested by the requesting State Party and for which reasons are given, preferably in the request. The requesting State Party may make reasonable requests for information on the status and progress of measures taken by the requested State Party to satisfy its request. The requested State Party shall respond to reasonable requests by the requesting State Party on the status, and progress in its handling, of the request. The requesting State Party shall promptly inform the requested State Party when the assistance sought is no longer required.
25. Mutual legal assistance may be postponed by the requested State Party on the ground that it interferes with an ongoing investigation, prosecution or judicial proceeding.
26. Before refusing a request pursuant to paragraph 21 of this article or postponing its execution pursuant to paragraph 25 of this article, the requested State Party shall consult with the requesting State Party to consider whether assistance may be granted subject to such terms and conditions as it deems necessary. If the requesting State Party accepts assistance subject to those conditions, it shall comply with the conditions.
27. Without prejudice to the application of paragraph 12 of this article, a witness, expert or other person who, at the request of the requesting State Party, consents to give evidence in a proceeding or to assist in an investigation, prosecution or judicial proceeding in the territory of the requesting State Party shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in that territory in respect of acts, omissions or convictions prior to his or her departure from the territory of the requested State Party. Such safe conduct shall cease when the witness, expert or other person having had, for a period of fifteen consecutive days or for any period agreed upon by the States Parties from the date on which he or she has been officially informed that his or her presence is no longer required by the judicial authorities, an opportunity of leaving, has nevertheless remained voluntarily in the territory of the requesting State Party or, having left it, has returned of his or her own free will.
28. The ordinary costs of executing a request shall be borne by the requested State Party, unless otherwise agreed by the States Parties concerned. If expenses of a substantial or extraordinary nature are or will be required to fulfil the request, the States Parties shall consult to determine the terms and conditions under which the request will be executed, as well as the manner in which the costs shall be borne.
29. The requested State Party:
(a) Shall provide to the requesting State Party copies of government records, documents or information in its possession that under its domestic law are available to the general public;
(b) May, at its discretion, provide to the requesting State Party in whole, in part or subject to such conditions as it deems appropriate, copies of any government records, documents or information in its possession that under its domestic law are not available to the general public.
30. States Parties shall consider, as may be necessary, the possibility of concluding bilateral or multilateral agreements or arrangements that would serve the purposes of, give practical effect to or enhance the provisions of this article.
Article 49
Joint investigations
States Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States, the competent authorities concerned may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis. The States Parties involved shall ensure that the sovereignty of the State Party in whose territory such investigation is to take place is fully respected.
Article 50
Special investigative techniques
1. In order to combat corruption effectively, each State Party shall, to the extent permitted by the basic principles of its domestic legal system and in accordance with the conditions prescribed by its domestic law, take such measures as may be necessary, within its means, to allow for the appropriate use by its competent authorities of controlled delivery and, where it deems appropriate, other special investigative techniques, such as electronic or other forms of surveillance and undercover operations, within its territory, and to allow for the admissibility in court of evidence derived therefrom.
2. For the purpose of investigating the offences covered by this Convention, States Parties are encouraged to conclude, when necessary, appropriate bilateral or multilateral agreements or arrangements for using such special investigative techniques in the context of cooperation at the international level. Such agreements or arrangements shall be concluded and implemented in full compliance with the principle of sovereign equality of States and shall be carried out strictly in accordance with the terms of those agreements or arrangements.
3. In the absence of an agreement or arrangement as set forth in paragraph 2 of this article, decisions to use such special investigative techniques at the international level shall be made on a case-by-case basis and may, when necessary, take into consideration financial arrangements and understandings with respect to the exercise of jurisdiction by the States Parties concerned.
4. Decisions to use controlled delivery at the international level may, with the consent of the States Parties concerned, include methods such as intercepting and allowing the goods or funds to continue intact or be removed or replaced in whole or in part.
Article 54
Mechanisms for recovery of property through international cooperation in confiscation
1. Each State Party, in order to provide mutual legal assistance pursuant to article 55 of this Convention with respect to property acquired through or involved in the commission of an offence established in accordance with this Convention, shall, in accordance with its domestic law:
(a) Take such measures as may be necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another State Party;
(b) Take such measures as may be necessary to permit its competent authorities, where they have jurisdiction, to order the confiscation of such property of foreign origin by adjudication of an offence of money-laundering or such other offence as may be within its jurisdiction or by other procedures authorized under its domestic law; and
(c) Consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.
2. Each State Party, in order to provide mutual legal assistance upon a request made pursuant to paragraph 2 of article 55 of this Convention, shall, in accordance with its domestic law:
(a) Take such measures as may be necessary to permit its competent authorities to freeze or seize property upon a freezing or seizure order issued by a court or competent authority of a requesting State Party that provides a reasonable basis for the requested State Party to believe that there are sufficient grounds for taking such actions and that the property would eventually be subject to an order of confiscation for purposes of paragraph 1 (a) of this article;
(b) Take such measures as may be necessary to permit its competent authorities to freeze or seize property upon a request that provides a reasonable basis for the requested State Party to believe that there are sufficient grounds for taking such actions and that the property would eventually be subject to an order of confiscation for purposes of paragraph 1 (a) of this article; and
(c) Consider taking additional measures to permit its competent authorities to preserve property for confiscation, such as on the basis of a foreign arrest or criminal charge related to the acquisition of such property.
Article 55
International cooperation for purposes of confiscation
1. A State Party that has received a request from another State Party having jurisdiction over an offence established in accordance with this Convention for confiscation of proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph 1, of this Convention situated in its territory shall, to the greatest extent possible within its domestic legal system:
(a) Submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such an order is granted, give effect to it; or
(b) Submit to its competent authorities, with a view to giving effect to it to the extent requested, an order of confiscation issued by a court in the territory of the requesting State Party in accordance with articles 31, paragraph 1, and 54, paragraph 1 (a), of this Convention insofar as it relates to proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph 1, situated in the territory of the requested State Party.
2. Following a request made by another State Party having jurisdiction over an offence established in accordance with this Convention, the requested State Party shall take measures to identify, trace and freeze or seize proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph 1, of this Convention for the purpose of eventual confiscation to be ordered either by the requesting State Party or, pursuant to a request under paragraph 1 of this article, by the requested State Party.
3. The provisions of article 46 of this Convention are applicable, mutatis mutandis, to this article. In addition to the information specified in article 46, paragraph 15, requests made pursuant to this article shall contain:
(a) In the case of a request pertaining to paragraph 1 (a) of this article, a description of the property to be confiscated, including, to the extent possible, the location and, where relevant, the estimated value of the property and a statement of the facts relied upon by the requesting State Party sufficient to enable the requested State Party to seek the order under its domestic law;
(b) In the case of a request pertaining to paragraph 1 (b) of this article, a legally admissible copy of an order of confiscation upon which the request is based issued by the requesting State Party, a statement of the facts and information as to the extent to which execution of the order is requested, a statement specifying the measures taken by the requesting State Party to provide adequate notification to bona fide third parties and to ensure due process and a statement that the confiscation order is final;
(c) In the case of a request pertaining to paragraph 2 of this article, a statement of the facts relied upon by the requesting State Party and a description of the actions requested and, where available, a legally admissible copy of an order on which the request is based.
4. The decisions or actions provided for in paragraphs 1 and 2 of this article shall be taken by the requested State Party in accordance with and subject to the provisions of its domestic law and its procedural rules or any bilateral or multilateral agreement or arrangement to which it may be bound in relation to the requesting State Party.
5. Each State Party shall furnish copies of its laws and regulations that give effect to this article and of any subsequent changes to such laws and regulations or a description thereof to the Secretary-General of the United Nations.
6. If a State Party elects to make the taking of the measures referred to in paragraphs 1 and 2 of this article conditional on the existence of a relevant treaty, that State Party shall consider this Convention the necessary and sufficient treaty basis.
7. Cooperation under this article may also be refused or provisional measures lifted if the requested State Party does not receive sufficient and timely evidence or if the property is of a de minimis value.
8. Before lifting any provisional measure taken pursuant to this article, the requested State Party shall, wherever possible, give the requesting State Party an opportunity to present its reasons in favour of continuing the measure.
9. The provisions of this article shall not be construed as prejudicing the rights of bona fide third parties.
Article 56
Special cooperation
Without prejudice to its domestic law, each State Party shall endeavour to take measures to permit it to forward, without prejudice to its own investigations, prosecutions or judicial proceedings, information on proceeds of offences established in accordance with this Convention to another State Party without prior request, when it considers that the disclosure of such information might assist the receiving State Party in initiating or carrying out investigations, prosecutions or judicial proceedings or might lead to a request by that State Party under this chapter of the Convention.
Article 57
Return and disposal of assets
1. Property confiscated by a State Party pursuant to article 31 or 55 of this Convention shall be disposed of, including by return to its prior legitimate owners, pursuant to paragraph 3 of this article, by that State Party in accordance with the provisions of this Convention and its domestic law.
2. Each State Party shall adopt such legislative and other measures, in accordance with the fundamental principles of its domestic law, as may be necessary to enable its competent authorities to return confiscated property, when acting on the request made by another State Party, in accordance with this Convention, taking into account the rights of bona fide third parties.
3. In accordance with articles 46 and 55 of this Convention and paragraphs 1 and 2 of this article, the requested State Party shall:
(a) In the case of embezzlement of public funds or of laundering of embezzled public funds as referred to in articles 17 and 23 of this Convention, when confiscation was executed in accordance with article 55 and on the basis of a final judgement in the requesting State Party, a requirement that can be waived by the requested State Party, return the confiscated property to the requesting State Party;
(b) In the case of proceeds of any other offence covered by this Convention, when the confiscation was executed in accordance with article 55 of this Convention and on the basis of a final judgement in the requesting State Party, a requirement that can be waived by the requested State Party, return the confiscated property to the requesting State Party, when the requesting State Party reasonably establishes its prior ownership of such confiscated property to the requested State Party or when the requested State Party recognizes damage to the requesting State Party as a basis for returning the confiscated property;
(c) In all other cases, give priority consideration to returning confiscated property to the requesting State Party, returning such property to its prior legitimate owners or compensating the victims of the crime.
4. Where appropriate, unless States Parties decide otherwise, the requested State Party may deduct reasonable expenses incurred in investigations, prosecutions or judicial proceedings leading to the return or disposition of confiscated property pursuant to this article.
5. Where appropriate, States Parties may also give special consideration to concluding agreements or mutually acceptable arrangements, on a case-by-case basis, for the final disposal of confiscated property.".
Amendment agreed to.
Schedule 6 deleted.
SCHEDULE 7.
I move amendment No. 194:
In page 148, to delete lines 2 to 5 and substitute the following:
"TEXT OF EU/US AGREEMENT ON MUTUAL LEGAL ASSISTANCE".
Amendment agreed to.
Schedule 7, as amended, agreed to.
SCHEDULE 8.
I move amendment No. 195:
In page 159, to delete lines 2 to 6 and substitute the following:
"TEXT OF IRELAND/US TREATY OF 18 JANUARY 2001, AS MODIFIED".
Amendment agreed to.
Schedule 8, as amended, agreed to.
TITLE.
I move amendment No. 196:
In page 9, to delete lines 7 to 42 and substitute the following:
"(a) TO ENABLE EFFECT TO BE GIVEN IN THE STATE TO CERTAIN INTERNATIONAL AGREEMENTS, OR PROVISIONS OF SUCH AGREEMENTS, BETWEEN THE STATE AND OTHER STATES RELATING TO MUTUAL ASSISTANCE IN CRIMINAL MATTERS;".
This amendment simplifies the Long Title to the Bill. Following the inclusion of those international instruments to which the Bill now gives effect it was decided that the Long Title would be very unwieldy if all the instruments were listed.
Amendment agreed to.
Title, as amended, agreed to.
Pursuant to Standing Order 127(3) the clerk will report specially to the Dáil that the select committee has amended the Title.
Bill reported with amendments.