Amendments Nos. 1 and 2 form a composite proposal as do amendments Nos. 3 and 4 and amendments Nos. 27 and 28. Amendments Nos. 5, 7 to 12 inclusive, 16, 17, 26, 30 to 33, inclusive, 36, 38 to 42, inclusive, 47, 51, 64, 66, 68, 69, 79 and 82 to 86, inclusive are related. All of these amendments will be discussed together. Anybody who got all of those numbers can do the lotto.
Criminal Justice (Mutual Assistance) Bill 2005 [Seanad]: Report and Final Stages.
I move amendment No. 1:
In page 10, between lines 19 and 20, 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;".
While this is a large group of amendments they are all technical in nature and provide for clarifications, typographical and grammatical corrections.
Is the amendment agreed to?
Do Members want more detail?
Perhaps the Minister would elaborate somewhat.
Amendments Nos. 1 to 4, inclusive, correct the alphabetical sequence of the definitions of "2005 Council Decision" and "criminal conduct". Amendment No. 5 confirms that the definition of "criminal proceedings" covers proceedings relating to whether a person has benefited from assets or proceeds of crime. This amendment ensures consistency with the definition of "criminal investigation" in this section.
Amendments Nos. 7 and 8 correct an oversight arising from the amendments brought forward on Committee Stage. The freezing framework decision and the 2005 Council decision on the exchange of information and co-operation concerning terrorist offences were added to the list of Schedules containing the international instruments to which the Bill is giving effect. As these are EU instruments applying to EU member states, it is necessary to include them in the definition of member state in section 2. These amendments do that.
Amendment No. 9 is a drafting amendment. It deletes the words "subject to subsection (2) of section 73”. Amendment No. 10 clarifies that the assistance being provided relates to criminal matters. This is consistent with other references in the Bill. Amendment No. 12 clarifies that the reference to the second protocol is to the second additional protocol. This is consistent with the references to this protocol. Amendment No. 16 corrects a typographical error. Amendment No. 17 was introduced on the advice of the Parliamentary Counsel as better reflecting modern drafting.
Amendment No. 26 has also been proposed on the advice of the counsel. It clarifies that offences under section 20(1), concerning failure by a financial institution to comply with a High Court order, are without prejudice to the law relating to contempt of court.
Amendment No. 30 removes an unnecessary comma from section 24(5). Amendment No. 31 updates the reference to the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations which were amended by the 2007 regulations. Amendment No. 32 is another minor drafting amendment substituting the words "Act of 1983" for "1983 Act". The correction reflects the many references to legislation throughout the Bill. Amendment No. 33 corrects a minor typographical error in section 28.
Amendment No. 36 is a simple drafting amendment which substitutes the preferred word "prejudice" for "damage" in section 46(1)(a). Amendment No. 38 is a drafting amendment which inserts the words “baseline rate of exchange” for “exchange rate” in section 54(2)(a). This is consistent with the wording used elsewhere in the Bill, on foot of observations from the Irish Bankers Federation as several rates of exchange can be in use on any given day. This is something we are aware of from proceedings which are taking place elsewhere than in this House.
Amendments Nos. 39 and 40 correct an oversight and ensure that the provisions in section 40 concerning property subject to freezing co-operation orders also apply to confiscation co-operation orders. Amendment No. 41 corrects an error and replaces the word "confiscation" for "forfeiture". Amendment No. 42 corrects the reference to the Police (Property) Act of 1897 by introducing parenthesis around the word "Property". Amendment No. 47 replaces the word "order" in section 73(7) with "warrant". The reference to "subsection (15)” in section 74(12)(c) should be to “subsection (17)”. Amendment No. 51 makes the necessary correction.
Amendment No. 64 amends section 82(4), concerning the examination of objects and sites, by confirming that the reference to a "request" is to a request "from a designated state".
Amendment No. 66 to section 87, concerns the definition of "Competent Authority in the State" in regard to "controlled deliveries". It amends subparagraph (a) of the definition and provides that the competent authority in the State can be the Garda Commissioner or a member of the Garda Síochána authorised by him. This is consistent with the provision for the Revenue Commissioners in subparagraph (b) of the definition.
Amendment No. 68 to section 94(2) confirms that more than one authority can be designated as Eurojust national correspondent for terrorism matters. Amendment No. 69 corrects section 96(4)(b) by introducing the word “shall” at the beginning of the subparagraph. Amendment No. 79 corrects the table in paragraph (d) of section 104. The reference to €500 should be to €650.
Amendment No. 82 amends the text of section 106 and clarifies that the provision concerns the power of the District Court to make a number of orders. Amendments Nos. 83, 84 and 86 are drafting amendments to the Schedules, specifically Schedule 1, 2, and 13.
I do not object to any of those amendments and I thank the Minister for the explanation.
I agree.
Amendment agreed to.
I move amendment No. 2:
In page 10, to delete lines 24 to 26.
Amendment agreed to.
I move amendment No. 3:
In page 10, between lines 26 and 27, to insert the following:
""criminal conduct" means any conduct—
(a) which constitutes an offence, or
(b) which occurs in a designated state and would, if it occurred in the State, constitute an offence;”.
Amendment agreed to.
I move amendment No. 4:
In page 10, to delete lines 36 to 39.
Amendment agreed to.
I move amendment No. 5:
In page 10, between lines 41 and 42, to insert the following:
"(a) proceedings to determine whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds,”.
Amendment agreed to.
Amendments Nos. 6, 13 and 14 are related and may be discussed together.
Amendments Nos. 6, 13 and 14 do not arise out of Committee proceedings so I move to recommit.
Is that agreed? Agreed.
Bill recommitted in respect of amendment No. 6.
I move amendment No. 6:
In page 11, to delete lines 39 to 41 and substitute the following:
""designated state" means a member state and any other state designated under section 4;”.
Amendment No. 14 introduces a new section 11 to the Bill. It is a saving provision which seeks to ensure that the assistance which can currently be provided to states under the Criminal Justice Act 1994 continues to be available.
Under the 1994 Act, a state, on becoming party to certain international instruments, is designated for the purposes of mutual assistance relating to the confiscation or forfeiture of property and for the purposes of the search for evidence. In the region of 180 countries have been designated to date for either or both of these types of assistance. However, designation is not a requirement for the purpose of taking of evidence or the service of documents. Such assistance could be provided on request from a state and, of course, assuming the necessary safeguards have been met. It was always intended that the ability to provide such assistance would be continued under this Bill.
Section 4 of the Bill as it currently stands allows for the designation of states for the purposes of mutual assistance under this Bill or specified parts of its provisions. However, since finishing Committee Stage, I have been advised that the wording of section 4 is such that it may, in effect, limit the assistance which is currently available. To continue the current levels of assistance, it is necessary to bring forward this amendment, which puts beyond doubt the right of the State to seek and provide assistance to the extent possible under the 1994 Act. Not to do so would create uncertainty as to what assistance may be provided.
Amendments Nos. 6 and 13 are consequent to amendment No. 14.
I do not have a problem with the amendment.
Is Deputy Rabbitte in agreement?
Yes.
Amendment agreed to.
Bill reported with amendment.
I move amendment No. 7:
In page 12, line 37, to delete "Protocol or" and substitute "Protocol,".
Amendment agreed to.
I move amendment No. 8:
In page 12, line 38, after "Convention," to insert "Framework Decision or 2005 Council Decision,".
Amendment agreed to.
I move amendment No. 9:
In page 13, line 2, to delete ", subject to subsection (2) of section 73”.
Amendment agreed to.
I move amendment No. 10:
In page 14, line 41, after "assistance" to insert "in criminal matters".
Amendment agreed to.
I move amendment No. 11:
In page 15, between lines 28 and 29, to insert the following:
"(h) Schedule 8 sets out the English text of the 1959 Convention and the First Additional Protocol thereto,”.
Amendment agreed to.
I move amendment No. 12:
In page 19, line 26, after "Second" to insert "Additional".
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 13 and 14.
I move amendment No. 13:
In page 19, line 38, to delete "The" and substitute "Without prejudice to section 11, the”.
Amendment agreed to.
I move amendment No. 14:
In page 19, after line 46, to insert the following:
11.—(1) Where—
(a) mutual assistance between the State and another state was provided for by or under a provision of Part VII of the Act of 1994 before the repeal of that Part on the commencement of section 10(a), and
(b) the state is not designated under section 4 for the purposes of that assistance,
the assistance concerned shall continue to be provided under and in accordance with the corresponding provision of this Act, which accordingly shall have effect, with any necessary modifications, for that purpose.
(2) The reference in subsection (1) to Part VII of the Act of 1994 includes a reference to the Second Schedule to that Act.
(3) References in subsection (1) to a state include references to a country or territory within the meaning of the said Part VII.”.
Amendment agreed to.
Bill reported with amendments.
I move amendment No. 15:
In page 20, line 22, 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;”.
Amendment No. 15 relates to the interpretation section of the Bill in Part II where there is a definition of "account". We are dealing here with information about financial transactions for criminal investigation purposes. The more I look at the debate so far, particularly on Committee Stage, I am driven to the conclusion that the Minister will not take on board this amendment because it could be punitive on financial institutions. That is the net point of his objection: it would impose a burden on the banks if they had to take on board the amendment. I seek to broaden the definition to cover money that is laundered to put beyond doubt that it is possible that a suspect is using another person's name to conceal money. It might be that of a relative, a girlfriend or an accomplice.
When the point was made in the Seanad debate on this Bill that this would be an additional burden on financial institutions, we recast the amendment to make plain that it would require circumstances whereby an account could be identified in a financial institution without undue difficulty. It is not the imposition that the Minister suggests. If the test is without undue difficulty and since we know that this crime invites hiding money in another person's account, it seems a reasonable amendment.
As well as complaining about the burden on the banks, the Minister sought to assert that section 11(1)(e) would meet the requirement. This refers to “any other account held by another person, where information in relation to it would be relevant to the investigation referred to in the request;”. My amendment seeks to do no more than make plain and clarify the particular circumstances I have explained, whereby money is being concealed in someone else’s account in those circumstances. For the purpose of clarity and to broaden the definition in this interpretation section, I am advancing the amendment and hope the Minister will take it on board.
I will take matters on board later but regret to advise Deputy Rabbitte that I cannot accept this amendment. On Committee Stage, I indicated that I was willing to revisit the matter. I put the proposal to the office of the Attorney General and I was advised it was considered an inappropriate amendment. The phrase "without undue difficulty" is very vague. It is considered that it would not be possible for banks to comply with this requirement and could lead to disputes concerning what is unduly difficult. It would have the effect of broadening the definition of account and place a heavy burden on banks in this State. Given that the definition also concerns accounts in designated states, it could have an effect of placing an additional requirement on banks in other states. The amendment proposed by Deputy Rabbitte goes beyond the protocol to the 2000 convention, to which we are giving effect in this part of the Bill. Article 2 of the protocol states that on request a state shall provide the particulars of specified bank accounts.
That I am seeking to broaden the definition is not disputed. The Minister is correct. I am only doing that to make it effective. We saw a programme as recently as last night, where trans-border crime seeks to take refuge in concealing the ownership of accounts where possible. For that purpose, I concede that I am trying to broaden the definition.
The Minister states that "without undue difficulty" is unnecessarily vague. It was only inserted in the amendment because of the argument in the Seanad that it would be a punitive burden on the banks. The intention here was to cover the circumstances where it almost jumps up and bites someone, it is so obvious that the money is somebody else's. It was designed to minimise the burden on financial institutions in terms of co-operating with the authorities and providing the information. The Minister has now turned that argument back on me by saying that my amendment is too vague. I must accept that this is the view of the Attorney General but for reasons of clarity the amendment has merit.
Amendment put and declared lost.
I move amendment No. 16:
In page 21, line 26, to delete "in".
Amendment agreed to.
I move amendment No. 17:
In page 22, line 1, to delete "shall be" and substitute "is".
Amendment agreed to.
Amendments Nos. 18, 19, 22, 23 are related and may be discussed together.
I move amendment. No. 18:
In page 22, line 37, after "ex parte” to insert “and otherwise than in public”.
Amendments Nos. 19 and 23, proposed by Deputy Rabbitte, are alternatives to amendments Nos. 18 and 22. These are in response to matters raised by Deputy Rabbitte during the debate on Committee Stage, which I agreed to ask the Parliamentary Counsel to examine. Amendments are now being brought forward to sections 12 and 16 that clarify that applications for account information orders or account monitoring orders may be brought ex parte and otherwise than in public. I thank Deputy Rabbitte for drawing this matter to my attention.
Although it is not precisely the terms of my amendment, the amendment of the Minister has the same import and meets the point I sought to highlight on Committee Stage.
Amendment agreed to.
Amendment No. 19 not moved.
Amendment No. 20 arises from the debate on Committee Stage. Amendment No. 21 is a technical alternative, amendments Nos. 24 and 34 are related and amendment No. 25 is a technical alternative to amendment No. 24. Amendments Nos. 20, 21, 24, 25 and 34 are related and may be discussed together.
I move amendment No. 20:
In page 23, to delete lines 21 to 24 and substitute the following:
"(5) An order under this section has effect notwithstanding any obligation as to secrecy or any other restriction on disclosure imposed by statute or otherwise.".
Amendments Nos. 21 and 25, as proposed by Deputy Rabbitte, are alternatives to the official amendments Nos. 20 and 24. They also address an issue raised by Deputy Rabbitte on Committee Stage to which I agreed to return. The amendments will amend the relevant sections 12, 16 and 31, deleting the references to orders being that of the High Court. The Deputy correctly pointed out that these provisions were unnecessary. I shared his view and am flattered that both of us have superior wisdom to the Parliamentary Counsel.
I share in the glory.
Amendment agreed to.
Amendment No. 21 not moved.
I move amendment No. 22:
In page 25, line 40, after "ex parte” to insert “and otherwise than in public”.
Amendment agreed to.
Amendment No. 23 not moved.
I move amendment No. 24:
In page 26, to delete lines 26 to 29 and substitute the following:
"(5) An order under this section has effect notwithstanding any obligation as to secrecy or any other restriction on disclosure imposed by statute or otherwise.".
Amendment agreed to.
Amendment No. 25 not moved.
I move amendment No. 26:
In page 27, between lines 25 and 26, to insert the following:
"(2) Subsection (1) is without prejudice to the law relating to contempt of court.”.
Amendment agreed to.
I move amendment No. 27:
In page 29, line 18, after "where" to insert "the request".
Amendment agreed to.
I move amendment No. 28:
In page 29, line 19, to delete "the request".
Amendment agreed to.
I move amendment No. 29:
In page 31, to delete lines 29 to 34.
The point of the amendment relates to whether the Minister is satisfied that there is no constitutional infirmity in a circumstance where he can change the law effectively by making a declaration. Hearing the Minister's response is the only merit of persisting with my amendment.
The Deputy expressed his concern that the provision would allow the law to be changed by Executive act rather than primary legislation. The subsection gives effect to two articles in the 2000 convention. The State may make a declaration under the articles at the time of entry into force of the convention to the effect that immediate transmission of interceptions is not possible. In those circumstances, the State will comply with requests for interception, recording and subsequent transmission of telecommunications as provided for.
However, the proposition that this provision allows for a change of law by Executive act is not strictly correct. 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 the declaration. Furthermore, the effect of the declaration is merely to allow for the recording and subsequent transmission of telecommunications rather than immediate transmission in circumstances where the latter is not possible.
Subsection 24(2) provides the required primary legislative basis for the interception and recording. The possibility of making the declaration is a safeguard. The subsection allows Ireland to make the necessary declaration at the time of ratification of the convention that, if we are unable to provide for interception and immediate transmission, it will enable us to review the capacity of our telecommunications system prior to ratification. It does not affect our obligation to transmit the information.
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 31, line 39, to delete "1993," and substitute "1993".
Amendment agreed to.
I move amendment No. 31:
In page 34, line 35, after "2003)" to insert the following:
", as amended by the European Communities (Electronic Communications Networks and Services) (Authorisation) (Amendment) Regulations 2007 (S.I. No. 372 of 2007)".
Amendment agreed to.
I move amendment No. 32:
In page 35, line 2, to delete "1983 Act" and substitute "Act of 1983".
Amendment agreed to.
I move amendment No. 33:
In page 35, line 26, after "to" where it secondly occurs to insert "be".
Amendment agreed to.
I move amendment No. 34:
In page 39, to delete lines 4 to 9 and substitute the following:
"(4) An order under this section does not apply in relation to any documents subject to legal privilege.".
Amendment agreed to.
Amendment No. 35 is in the name of Deputy Rabbitte. Amendments Nos. 35 and 37 are related and will be discussed together.
I move amendment No. 35:
In page 40, between lines 14 and 15, to insert the following:
"(6) This section applies to a freezing order whether made before or after the commencement of this section.".
The purpose of seeking to make this amendment relates to concern regarding orders that are extant before the commencement of the section and as to whether there is doubt about their capacity to be enforced in another jurisdiction. This is the net point argued on Committee Stage and in respect of which I am seeking the Minister's assurance.
I can give the Deputy some assurance by reference to the Interpretation Act 2005, which provides at subsection 26 (2) that, where an enactment repeals a former enactment, proceedings taken under the former enactment may be continued under and in conformity with the new enactment in so far as they may be done consistently with the new enactment, which is possible under this legislation.
Subsection 27 (1) deals with the effect of a repeal and provides that it does not prejudice or affect any legal proceedings, civil or criminal, pending at the time of the repeal. Requests for assistance received prior to the commencement of this legislation can, by virtue of subsection 6 (3) of the Bill, fall to be dealt with as if the then Act had not been passed. Therefore, there is in the Interpretation Act a basis for what occurred previously.
In terms of the future, section 32 deals with the transmission of a freezing order from another member state for enforcement and amendment No. 35, proposed by Deputy Rabbitte, seeks to apply the section to an order made before its commencement. As the Deputy stated, this matter was raised on Committee Stage, but the amendment is not necessary to transmit a freezing order under the terms laid out in this section, even if the freezing order was made some time ago. Once this provision is enacted, it may be applied to a freezing order regardless of when the latter was made. If the Deputy's concerns relate to the application of the relevant provisions in the Act to orders made prior to the commencement, the matter is dealt with in the Interpretation Act.
Amendment, by leave, withdrawn.
I move amendment No. 36:
In page 48, line 23, to delete "damage" and substitute "prejudice".
Amendment agreed to.
Amendment No. 37 not moved.
I move amendment No. 38:
In page 54, line 3, to delete "exchange rate" and substitute "baseline rate of exchange".
Amendment agreed to.
I move amendment No. 39:
In page 54, line 21, after "39,” to insert “40,”.
Amendment agreed to.
I move amendment No. 40:
In page 54, line 26, after "39,” to insert “40,”.
Amendment agreed to.
I move amendment No. 41:
In page 56, line 8, to delete "confiscation" and substitute "forfeiture".
Amendment agreed to.
I move amendment No. 42:
In page 56, line 39, to delete "Police Property Act" and substitute "Police (Property) Act".
Amendment agreed to.
Amendment No. 43 is in the name of Deputy Rabbitte. Amendments Nos. 44, 46, 54 and 70 to 78, inclusive, are related and will be discussed together with amendment No. 43. Is there agreement to recommit in respect of those amendments?
My amendments are rather technical in character. The point of principle is Deputy Rabbitte's.
Bill recommitted in respect of amendments Nos. 43 and 44.
I move amendment No. 43:
In page 58, line 6, to delete "is admissible," and substitute the following:
"may be admitted, having due regard to the constitutional rights of the Defendant".
The point of principle is the constitutional rights of the defendant or, more specifically, the right to cross-examine. One cannot cross-examine a document. One can easily envisage circumstances where, in the interests of justice, it would be seen to be necessary that the right to cross-examine be provided for. Whatever about the technicalities that arise, it is this point of principle that I seek to raise in the House.
Amendment No. 43 proposed by Deputy Rabbitte seeks to insert an express reference to the constitutional rights of the person who is examined in another state. The way this matter is dealt with in the Bill is set out in subsection 10, which provides that a court has a discretion as to whether the law of the state where the evidence was taken allowed for legal representation and cross-examination of the person and any other party concerned. There is a further provision for the court to consider any aspect in which the taking of the evidence may differ from the procedures used in Ireland. As the Bill stands, the court may exclude evidence if it is not satisfied in these matters. Moreover, a court will in all instances have regard to the constitutional rights of a defendant before it. Including a specific provision to that end would be unnecessary and may call into question the instances where such a provision is not specified. It is unusual to specify in legislation the constitutional rights of a party in respect of the admissibility of evidence. There are constitutional provisions governing these matters stemming from court decisions, which are applied by the courts as a matter of course in hearing such proceedings.
If the Minister says it is unusual to put this into legislation, I will take his word for it. However, there is some concern in respect of the particular circumstances in which a defendant would challenge it, in that it does not appear to be explicit. However, the Minister seems to be saying it is implicit and if that is the case, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 44:
In page 58, to delete lines 9 to 14.
Amendment agreed to.
Bill reported with amendment.
Amendments Nos. 45 and 65 are related and will be discussed together. Is it agreed that these be recommitted? Agreed.
Bill recommitted in respect of amendments Nos. 45 and 46.
I move amendment No. 45:
In page 65, to delete lines 33 to 35 and substitute the following:
"is guilty of an offence and liable—
(i) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both, or
(ii) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.".
Amendment No. 45 to section 69 provides for a penalty following conviction on indictment of a witness who, when giving evidence before a judge of the District Court knowingly makes a false statement or does not testify when under an obligation to do so. The introduction of this amendment ensures consistency in the Bill as this provision replicates that in section 66 (11), which provides for the taking of evidence for use in the State.
Amendment No. 65 introduces a penalty in section 86 for non-compliance with an order for restitution. The penalty following summary conviction is of a fine not exceeding €2,500 or imprisonment for a term not exceeding six months, or both.
Amendment agreed to.
I move amendment No. 46:
In page 67, between lines 16 and 17, to insert the following:
"(8) In any proceedings relating to the offence—
(a) evidence (other than documentary evidence) which purports—
(i) to have been obtained as a result of a request under this section, and
(ii) to be certified by or on behalf of the appropriate authority to be such evidence,
is admissible without further proof, and
(b) documentary evidence which purports—
(i) to have been so obtained, and
(ii) to be so certified,
is admissible, without further proof, as evidence of any fact stated in it of which oral evidence would be admissible.".
Amendment agreed to.
Bill reported with amendments.
I move amendment No. 47:
In page 68, line 21, to delete "an order" and substitute "a warrant".
Amendment agreed to.
Amendments Nos. 48 and 50 are related and will be discussed together. The Minister to move and there will be a recommittal.
Bill recommitted in respect of amendment No. 48.
I move amendment No. 48:
In page 68, to delete lines 22 to 33 and substitute the following:
"(8) If, on the application, the judge is satisfied that this section applies to the request and it appears to him or her that there are reasonable grounds for believing that entry to any place is necessary for the purposes of complying with it, the judge may issue a warrant for the search of the place and any persons found there.".
The amendments apply to sections 73 and 74 and have been introduced following concerns raised by the Garda Síochána in recent times. Section 73 allows for the issuing of a search warrant and replaces section 55 of the Criminal Justice Act 1994. However, under subsection 8, the applicant, being a member of the Garda Síochána not below the rank of inspector, is required to satisfy the judge that the occupier of the place which would be the subject of the search has not consented to the entry or is unlikely to consent and that seeking consent would seriously prejudice compliance with the request. This process places an unrealistic burden on an applicant and it is proposed that the text be deleted to read simply that the judge should be satisfied with the request and that there are reasonable grounds that entry is necessary and on that basis a judge may issue a warrant for the search of the place and any persons found there. This is the change proposed by amendment No. 48. It involves the deletion of words. Finally the requirement relating to consent does not arise in similar domestic law, nor is there comparable provision in the 1994 Act.
Amendment agreed to.
Bill reported with amendment.
Amendments Nos. 49 and 52 arise from Committee Stage proceedings, are related and will be discussed together.
I move amendment No. 49:
In page 70, to delete lines 12 to 14 and substitute the following:
"(16) In this section—
"evidence" includes evidence of or relating to assets or proceeds deriving from criminal conduct in the designated state concerned or their identity or whereabouts;
"member state" includes the Swiss Confederation.".
These amendments to sections 73 and 74, are necessary as a result of amending the Bill on Committee Stage to cover the mutual assistance provisions of the EC-Swiss fraud agreement, which was introduced on Committee Stage. Sections 73 and 74 concern searches for evidence. However, in so far as a request is from an EU member state, these sections are limited to requests where the act concerned is punishable under both the law of the State and that of the member state, by imprisonment for at least six months, or, under Irish law, by at least six months' imprisonment and where it is being prosecuted in the member state by administrative authorities whose decision may give rise to criminal proceedings. Identical provisions are included in the EC-Swiss fraud agreement under Article 26.1(a). For this reason, the amendments provide that for the purposes of these sections, “member state” includes the Swiss Confederation.
Amendment agreed to.
Bill recommitted in respect of amendments No. 50.
I move amendment No. 50:
In page 71, to delete lines 16 to 25 and substitute the following:
"(9) If, on the application, the judge is satisfied that this section applies to the request and it appears to him or her that there are reasonable grounds for believing that the person named in the request possesses the evidential material, the judge may make an order under subsection (10).”.
Amendment agreed to.
Bill reported with amendment.
I move amendment No. 51:
In page 72, line 18, to delete "subsection (15)” and substitute “subsection (17)”.
Amendment agreed to.
I move amendment No. 52:
In page 73, to delete lines 15 to 17 and substitute the following:
"(19) In this section—
"evidential material" includes any such material relating to assets or proceeds deriving from criminal conduct in the designated state concerned or their identity or whereabouts;
"member state" includes the Swiss Confederation.".
Amendment agreed to.
Amendments Nos. 53 and 55 to 61, inclusive, are related and will be discussed together. The Minister should move that these amendments be recommitted.
Bill recommitted in respect of amendment Nos. 53 to 61 inclusive.
I move amendment No. 53:
In page 73, line 34, to delete "records." and substitute the following:
"records;
"nurse" means a person whose name is entered for the time being in the register of nurses established under section 27 of the Nurses Act 1985.".
These amendments relate to the identification evidence provisions of the Bill. Amendment No. 53 introduces a definition of "nurse" into section 75. Amendment No. 55 inserts the word "nurse" into section 78 (5), for the purpose of taking certain bodily samples. It is important, operationally, that nurses are empowered to take samples. Similar provision is made in the Road Traffic and Transport Act 2006 and the proposed definition of "nurse" is the same as in that legislation.
Amendment No. 56 to section 78 (7) is introduced in the interest of consistency. The proposed text mirrors subsection 2(8)(a) of the Criminal Justice (Forensic Evidence) Act 1990, as amended by section 14 of the Criminal Justice Act 2006. The words “for comparison purposes” have been taken out as they are unnecessary and are covered by the words “for the purpose of forensic testing”. This also is consistent with the wording of section 78 (5) which provides for the taking of bodily samples.
Amendment No. 57 inserts the words, "as well as the record of any analysis of the evidence or any other record relating to it that may be made in the requesting State" into the text of section 78(10). This provision requires the central authority to seek an assurance that evidence will be destroyed where the subject of an investigation is not prosecuted, is prosecuted but acquitted, or where the subject is placed on probation when three years from the making of the probation order have expired. The inclusion of the additional words is for the sake of completeness and clarity.
Amendments Nos. 58 to 60, inclusive, align the age of consent in the definition of consent contained in section 78 (12) with that used generally in the Children Act 2001.
Amendment No. 61 is introduced for the purpose of consistency with the provisions of section 52 of the Children Act 2001 relating to the age of criminal responsibility.
Amendment agreed to.
I move amendment No. 54:
In page 74, to delete lines 40 to 43 and in page 75, to delete lines 1 and 2.
Amendment agreed to.
I move amendment No. 55:
In page 76, line 8, after "doctor" to insert "or nurse".
Amendment agreed to.
I move amendment No. 56:
In page 76, to delete lines 13 to 18 and substitute the following:
"(7) Where a sample of hair other than pubic hair is taken in accordance with this section—
(a) the sample may be taken by plucking hairs with their roots and, in so far as it is reasonably practicable, the hairs shall be plucked singly, and
(b) no more hairs shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing.”.
Amendment agreed to.
I move amendment No. 57:
In page 76, line 36, after "evidence" to insert the following:
", as well as the record of any analysis of the evidence, or any other record relating to it, that may be made in the requesting state,".
Amendment agreed to.
I move amendment No. 58:
In page 77, line 18, to delete "17" and substitute "18".
Amendment agreed to.
I move amendment No. 59:
In page 77, line 20, to delete "17" and substitute "18".
Amendment agreed to.
I move amendment No. 60:
In page 77, line 21, to delete "14" and substitute "12".
Amendment agreed to.
I move amendment No. 61:
In page 77, to delete lines 23 and 24 and substitute the following:
"(c) in the case of a child aged 10 or 11 years who is detained on suspicion of having committed an offence mentioned in subsection (2) of section 52 (restriction on criminal proceedings against children) of the Children Act 2001, as substituted by section 129 of the Criminal Justice Act 2006, the consent of his or her parent or guardian.”.
Amendment agreed to.
Bill reported with amendments.
Amendments Nos. 62 and 63 are related and will be discussed together.
I move amendment No. 62:
In page 79, line 32, after "languages" to insert the following:
"and the document is not in that language or one of those languages".
Amendment No. 62 amends section 81(3) and is being introduced on the advice of the Parliamentary Counsel. This section ensures that where a document is served in the State on behalf of another state, it should be, if necessary, translated into a language understood by the person on whom the document is to be served. The introduction of the additional text clarifies that section 8 requires that the document to be served will be translated into a language understood by the subject.
Amendment No. 63, which also pertains to section 81, was tabled by Deputy Rabbitte on Committee Stage and I understand it is a Labour Party amendment.
I support amendment No. 62, which makes sense and obviously it is desirable that the document is intelligible and is in the language of the person in receipt of it. However, I would have thought that amendment No. 63 addresses a somewhat different point. It pertains to reasonable time being given to the person. I refer to a person who might be required, either as a defendant or to give witness in criminal proceedings in another state and he or she ought to be given reasonable time to present. This is a different point to stating the document ought to be in a language that is intelligible to the recipient.
In respect of many of the amendments dealt with under discussion, Members had a reasonable opportunity to debate them on Committee Stage. In this case however, I am unsure whether I understand the Minister's objections. We have just discussed section 80, which deals with the mode of service and provides that the document can be served in the post. Section 81 deals with the service of the documents in the State where a document requires a person to appear as a defendant or witness in criminal proceedings. In that context, my amendment merely seeks to provide that "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".
I thought that a reasonable right in respect of the person on whom the document is being served, given that it may be served through the post. Circumstances could arise whereby the person is required to present to a court in another jurisdiction at the drop of a hat or does not receive the document in time. I do not know the sanctions on a person who does not turn up in court as a result of the documents not being served on time. The amendment does no more than make a plea for a reasonable opportunity for the person on whom the document is being served, irrespective of whether he or she is the defendant or witness in the criminal proceedings, to have adequate time to make arrangements to present to court in the other member state.
Amendment agreed to.
I move amendment No. 63:
In page 81, between lines 6 and 7, to insert the following:
"(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.".
I regret that I have not changed my mind on this issue. When it was raised on Committee Stage, I expressed my concern that the effect of the amendment would be to impose timescales on other states when documents are served here on their behalf. I agreed to take advice on the matter but I reiterate that I am unable for the reasons previously given to accept the amendment. I have been advised there is no legal reason to include the amendment and that the provision could be legally ambiguous.
As I noted on Committee Stage, section 81(7) ensures there is no obligation on the part of 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 detriment, therefore, rests entirely with the requesting state. There is no obligation on a person to attend a hearing. Given that the detriment is on the requesting state, it is clearly in the interest of a requesting state seeking service of a document on the state to act in a timely manner. To legislate in the manner proposed would create significant practical difficulties as it could be expected that the definition of "reasonable time" in each state with which we would co-operate under this provision will vary significantly, which would invariably lead to disputes. I am satisfied that the terms of section 81(7), which release a person served under this provision of an obligation to comply with a request, is a sufficient safeguard.
If there is no obligation on the recipient of the document to present in the other jurisdiction, we can take it that no sanction can be imposed if he or she does not turn up. The Minister is saying that it is solely the responsibility of the requesting state to ensure adequate time is allowed.
Essentially.
Is the Minister satisfied that such a defendant would in no way be prejudiced by non-appearance?
The notice indicates that the person on whom the document is served may wish to seek legal advice as to the possible consequences of failure to comply with it under the law of the state which issued it. Of course, the potential liability lies in the law of the issuing state. Where we are the recipient state, clearly there is no legal obligation.
Could circumstances arise whereby that state would subsequently move for the extradition of a defendant who through no fault of his or her own did not present to court in the other country?
This is only for evidential purposes. In Europe it would fall to be determined whether the European arrest warrant procedure applied, whereas it would be a matter of extradition in respect of other countries. It is not generally a defence in extradition arrangements. I am seeking to clarify the position regarding the European arrest warrant. It is not a corresponding offence in this State, so it would not be subject to an extradition arrangement. An arrest warrant does not apply to this side, so an arrest warrant or extradition cannot be sought on foot of it. If it is not an offence in this jurisdiction, there is no correspondence for extradition purposes. I am advised that the European arrest procedure could not be invoked.
Section 81(1)(a) makes quite broad reference to service of a document requiring the person to appear as a defendant or attend as a witness to criminal proceedings in a designated state. That would appear to be broader than the point conceded by the Minister.
That is in respect of the requesting state. The point Deputy Rabbitte raised was, assuming it is an offence in the requesting state, whether it is an offence in respect of which extradition can be sought from Ireland or to which the European arrest warrant procedure is applicable. I am advised it is not an extraditable offence and that the European arrest warrant procedure does not apply to it. That means in effect that one cannot be extradited for a failure to turn up at a hearing.
Amendment, by leave, withdrawn.
I move amendment No. 64:
In page 81, line 21, after "request" to insert "from a designated state".
Amendment agreed to.
Bill recommitted in respect of amendment No. 65.
I move amendment No. 65:
In page 83, between lines 19 and 20, to insert the following:
"(5) A person who does not comply with an order under this section 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.
Bill reported with amendment.
I move amendment No. 66:
In page 83, line 36, after "Síochána" to insert the following:
"or a member of the Garda Síochána authorised by him or her for the time being to exercise his or her functions under this Chapter".
Amendment agreed to.
Bill recommitted in respect of amendment No. 67.
I move amendment No. 67:
In page 85, to delete lines 23 to 48 and in page 86, to delete lines 1 to 7 and substitute the following:
90.—Section 51 (international service) of the Garda Síochána Act 2005 is amended-—
(a) in subsection (2)(a), by the deletion of “State, or” and the substitution of “State,”, and
(b) by the substitution of the following subsections for subsections (b) and (c):
"(b) as members of a joint investigation team within the meaning of the Criminal Justice (Joint Investigation Teams) Act 2004, as amended by section 95 of the Criminal Justice (Mutual Assistance) Act 2008,
(c) in connection with the making of a controlled delivery outside the State pursuant to a request under section 88 of the said Act of 2008, or
(d) on secondment to an international organisation with the consent of the Minister.”.”.
This is a technical amendment. The Garda Síochána Act 1989 has been repealed in its entirety by the Garda Síochána Act 2005. The current section 90 refers to the provisions of the 1989 Act which relate to the despatch of contingents of the Garda Síochána for service outside the State. The provisions pertaining to external service are now contained in the 2005 Act. This oversight in the Bill is addressed by the amendment.
Amendment agreed to.
Bill reported with amendment.
I move amendment No. 68:
In page 87, line 41, to delete "the" and substitute "any".
Amendment agreed to.
I move amendment No. 69:
In page 88, line 30, before "have" to insert "shall".
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 70 to 78, inclusive.
I move amendment No. 70:
In page 90, line 4, to delete "A document" and substitute "In any proceedings a document".
Amendment agreed to.
I move amendment No. 71:
In page 90, line 10, after "warrant," to insert "or".
Amendment agreed to.
I move amendment No. 72:
In page 90, lines 12 to 15, to delete all words from and including "or" in line 12 down to and including "evidence," in line 15.
Amendment agreed to.
I move amendment No. 73:
In page 90, line 22, to delete "A document" and substitute "In any proceedings a document".
Amendment agreed to.
I move amendment No. 74:
In page 90, to delete lines 34 to 36 and substitute the following:
"(3) In any proceedings a document purporting—
(a) to be a translation of a document mentioned in subsection (1) or (2) or of a statement or document mentioned in section 61(8), 72(8) or 76(8), and”.
Amendment agreed to.
I move amendment No. 75:
In page 91, line 1, to delete "A document" and substitute "In any proceedings a document".
Amendment agreed to.
I move amendment No. 76:
In page 91, between lines 8 and 9, to insert the following:
"(5) In any proceedings a document purporting-—
(a) to be a certificate given by or on behalf of a court, tribunal or authority in a designated state, or
(b) to bear the seal of such a court, tribunal or other authority,
is admissible, without further proof, as evidence of such a certificate or seal.".
Amendment agreed to.
I move amendment No. 77:
In page 91, line 9, to delete "A document" and substitute " In any proceedings a document".
Amendment agreed to.
I move amendment No. 78:
In page 91, line 14, after "proof," to insert "as evidence".
Amendment agreed to.
Bill reported with amendments.
I move amendment No. 79:
In page 92, line 21, to delete "€500" and substitute "€650".
Amendment agreed to.
I move amendment No. 80:
In page 92, to delete lines 35 to 37.
I understand Deputy Rabbitte has proposed the same amendment. A matter was raised by the Deputy on Committee Stage concerning the deletion of paragraph (e) of section 104. I raised the matter with Parliamentary Counsel and it was agreed that a contradiction existed in the terms of the Criminal Justice Act 1994, which provides in section 3(13) that the Act applies to property wherever situated. I am happy to correct the provision. I note that the Parliamentary Counsel cannot improve on the formula proposed by Deputy Rabbitte and, accordingly, I accept his amendment.
Amendment agreed to.
Bill recommitted in respect of amendment No. 81.
I move amendment No. 81:
In page 96, between lines 43 and 44, to insert the following:
"105.—Section 8(7) of the Criminal Assets Bureau Act 1996 is amended by the deletion of "Any information" and the substitution of "Subject to section 5(1), any information"."
Amendment agreed to.
Bill reported with amendment.
I move amendment No. 82:
In page 97, lines 8 and 9, to delete all words from and including "the" in line 8 down to and including "86(1)" in line 9 and substitute "a power conferred by section 73(8), 74(9) or 86".
Amendment agreed to.
I move amendment No. 83:
In page 98, to delete lines 3 to 5.
Amendment agreed to.
I move amendment No. 84:
In page 119, to delete lines 3 to 6.
Amendment agreed to.
I move amendment No. 85:
In page 155, after line 25, to insert the following:
"SCHEDULE 8
PART 1
TEXT OF 1959 CONVENTION
Preamble
The governments signatory hereto, being members of the Council of Europe, Considering that the aim of the Council of Europe is to achieve greater unity among its members;
Believing that the adoption of common rules in the field of mutual assistance in criminal matters will contribute to the attainment of this aim;
Considering that such mutual assistance is related to the question of extradition, which has already formed the subject of a Convention signed on 13th December 1957,
Have agreed as follows:
Chapter I — General provisions
Article 1
1. The Contracting Parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party.
2. This Convention does not apply to arrests, the enforcement of verdicts or offences under military law which are not offences under ordinary criminal law.
Article 2
Assistance may be refused:
a) if the request concerns an offence which the requested Party considers a political offence, an offence connected with a political offence, or a fiscal offence;
b) if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country.
Chapter II — Letters rogatory
Article 3
1. The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents.
2. If the requesting Party desires witnesses or experts to give evidence on oath, it shall expressly so request, and the requested Party shall comply with the request if the law of its country does not prohibit it.
3. The requested Party may transmit certified copies or certified photostat copies of records or documents requested, unless the requesting Party expressly requests the transmission of originals, in which case the requested Party shall make every effort to comply with the request.
Article 4
On the express request of the requesting Party the requested Party shall state the date and place of execution of the letters rogatory. Officials and interested persons may be present if the requested Party consents.
Article 5
1. Any Contracting Party may, by a declaration addressed to the Secretary General of the Council of Europe, when signing this Convention or depositing its instrument of ratification or accession, reserve the right to make the execution of letters rogatory for search or seizure of property dependent on one or more of the following conditions:
a) that the offence motivating the letters rogatory is punishable under both the law of the requesting Party and the law of the requested Party;
b) that the offence motivating the letters rogatory is an extraditable offence in the requested country;
c) that execution of the letters rogatory is consistent with the law of the requested Party.
2. Where a Contracting Party makes a declaration in accordance with paragraph 1 of this article, any other Party may apply reciprocity.
Article 6
1. The requested Party may delay the handing over of any property, records or documents requested, if it requires the said property, records or documents in connection with pending criminal proceedings.
2. Any property, as well as original records or documents, handed over in execution of letters rogatory shall be returned by the requesting Party to the requested Party as soon as possible unless the latter Party waives the return thereof.
Chapter III — Service of writs and records of judicial verdicts — Appearance of witnesses, experts and prosecuted persons
Article 7
1. The requested Party shall effect service of writs and records of judicial verdicts which are transmitted to it for this purpose by the requesting Party. Service may be effected by simple transmission of the writ or record to the person to be served. If the requesting Party expressly so requests, service shall be effected by the requested Party in the manner provided for the service of analogous documents under its own law or in a special manner consistent with such law.
2. Proof of service shall be given by means of a receipt dated and signed by the person served or by means of a declaration made by the requested Party that service has been effected and stating the form and date of such service. One or other of these documents shall be sent immediately to the requesting Party. The requested Party shall, if the requesting Party so requests, state whether service has been effected in accordance with the law of the requested Party. If service cannot be effected, the reasons shall be communicated immediately by the requested Party to the requesting Party.
3. Any Contracting Party may, by a declaration addressed to the Secretary General of the Council of Europe, when signing this Convention or depositing its instrument of ratification or accession, request that service of a summons on an accused person who is in its territory be transmitted to its authorities by a certain time before the date set for appearance. This time shall be specified in the aforesaid declaration and shall not exceed 50 days. This time shall be taken into account when the date of appearance is being fixed and when the summons is being transmitted.
Article 8
A witness or expert who has failed to answer a summons to appear, service of which has been requested, shall not, even if the summons contains a notice of penalty, be subjected to any punishment or measure of restraint, unless subsequently he voluntarily enters the territory of the requesting Party and is there again duly summoned.
Article 9
The allowances, including subsistence, to be paid and the travelling expenses to be refunded to a witness or expert by the requesting Party shall be calculated as from his place of residence and shall be at rates at least equal to those provided for in the scales and rules in force in the country where the hearing is intended to take place.
Article 10
1. If the requesting Party considers the personal appearance of a witness or expert before its judicial authorities especially necessary, it shall so mention in its request for service of the summons and the requested Party shall invite the witness or expert to appear.
The requested Party shall inform the requesting Party of the reply of the witness or expert.
2. In the case provided for under paragraph 1 of this article the request or the summons shall indicate the approximate allowances payable and the travelling and subsistence expenses refundable.
3. If a specific request is made, the requested Party may grant the witness or expert an advance. The amount of the advance shall be endorsed on the summons and shall be refunded by the requesting Party.
Article 11
1. A person in custody whose personal appearance as a witness or for purposes of confrontation is applied for by the requesting Party shall be temporarily transferred to the territory where the hearing is intended to take place, provided that he shall be sent back within the period stipulated by the requested Party and subject to the provisions of Article 12 in so far as these are applicable.
Transfer may be refused:
a) if the person in custody does not consent,
b) if his presence is necessary at criminal proceedings pending in the territory of the requested Party,
c) if transfer is liable to prolong his detention, or
d) if there are other overriding grounds for not transferring him to the territory of the requesting Party.
2. Subject to the provisions of Article 2, in a case coming within the immediately preceding paragraph, transit of the person in custody through the territory of a third State, Party to this Convention, shall be granted on application, accompanied by all necessary documents, addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the Party through whose territory transit is requested.
A Contracting Party may refuse to grant transit to its own nationals.
3. The transferred person shall remain in custody in the territory of the requesting Party and, where applicable, in the territory of the Party through which transit is requested, unless the Party from whom transfer is requested applies for his release.
Article 12
1. A witness or expert, whatever his nationality, appearing on a summons before the judicial authorities of the requesting Party shall not be prosecuted or detained or subjected to any other restriction of his personal liberty in the territory of that Party in respect of acts or convictions anterior to his departure from the territory of the requested Party.
2. A person, whatever his nationality, summoned before the judicial authorities of the requesting Party to answer for acts forming the subject of proceedings against him, shall not be prosecuted or detained or subjected to any other restriction of his personal liberty for acts or convictions anterior to his departure from the territory of the requested Party and not specified in the summons.
3. The immunity provided for in this article shall cease when the witness or expert or prosecuted person, having had for a period of fifteen consecutive days from the date when his presence is no longer required by the judicial authorities an opportunity of leaving, has nevertheless remained in the territory, or having left it, has returned.
Chapter IV — Judicial records
Article 13
1. A requested Party shall communicate extracts from and information relating to judicial records, requested from it by the judicial authorities of a Contracting Party and needed in a criminal matter, to the same extent that these may be made available to its own judicial authorities in like case.
2. In any case other than that provided for in paragraph 1 of this article the request shall be complied with in accordance with the conditions provided for by the law, regulations or practice of the requested Party.
Chapter V — Procedure
Article 14
1. Requests for mutual assistance shall indicate as follows:
a) the authority making the request,
b) the object of and the reason for the request,
c) where possible, the identity and the nationality of the person concerned, and
d) where necessary, the name and address of the person to be served.
2. Letters rogatory referred to in Articles 3, 4 and 5 shall, in addition, state the offence and contain a summary of the facts.
Article 15
1. Letters rogatory referred to in Articles 3, 4 and 5 as well as the applications referred to in Article 11 shall be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party and shall be returned through the same channels.
2. In case of urgency, letters rogatory may be addressed directly by the judicial authorities of the requesting Party to the judicial authorities of the requested Party. They shall be returned together with the relevant documents through the channels stipulated in paragraph 1 of this article.
3. Requests provided for in paragraph 1 of Article 13 may be addressed directly by the judicial authorities concerned to the appropriate authorities of the requested Party, and the replies may be returned directly by those authorities. Requests provided for in paragraph 2 of Article 13 shall be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party.
4. Requests for mutual assistance, other than those provided for in paragraphs 1 and 3 of this article and, in particular, requests for investigation preliminary to prosecution, may be communicated directly between the judicial authorities.
5. In cases where direct transmission is permitted under this Convention, it may take place through the International Criminal Police Organisation (Interpol).
6. A Contracting Party may, when signing this Convention or depositing its instrument of ratification or accession, by a declaration addressed to the Secretary General of the Council of Europe, give notice that some or all requests for assistance shall be sent to it through channels other than those provided for in this article, or require that, in a case provided for in paragraph 2 of this article, a copy of the letters rogatory shall be transmitted at the same time to its Ministry of Justice.
7. The provisions of this article are without prejudice to those of bilateral agreements or arrangements in force between Contracting Parties which provide for the direct transmission of requests for assistance between their respective authorities.
Article 16
1. Subject to paragraph 2 of this article, translations of requests and annexed documents shall not be required.
2. Each Contracting Party may, when signing or depositing its instrument of ratification or accession, by means of a declaration addressed to the Secretary General of the Council of Europe, reserve the right to stipulate that requests and annexed documents shall be addressed to it accompanied by a translation into its own language or into either of the official languages of the Council of Europe or into one of the latter languages, specified by it. The other Contracting Parties may apply reciprocity.
3. This article is without prejudice to the provisions concerning the translation of requests or annexed documents contained in the agreements or arrangements in force or to be made between two or more Contracting Parties.
Article 17
Evidence or documents transmitted pursuant to this Convention shall not require any form of authentication.
Article 18
Where the authority which receives a request for mutual assistance has no jurisdiction to comply therewith, it shall, ex officio, transmit the request to the competent authority of its country and shall so inform the requesting Party through the direct channels, if the request has been addressed through such channels.
Article 19
Reasons shall be given for any refusal of mutual assistance.
Article 20
Subject to the provisions of Article 10, paragraph 3, execution of requests for mutual assistance shall not entail refunding of expenses except those incurred by the attendance of experts in the territory of the requested Party or the transfer of a person in custody carried out under Article 11.
Chapter VI — Laying of information in connection with proceedings
Article 21
1. Information laid by one Contracting Party with a view to proceedings in the courts of another Party shall be transmitted between the Ministries of Justice concerned unless a Contracting Party avails itself of the option provided for in paragraph 6 of Article 15.
2. The requested Party shall notify the requesting Party of any action taken on such information and shall forward a copy of the record of any verdict pronounced.
3. The provisions of Article 16 shall apply to information laid under paragraph 1 of this article.
Chapter VII — Exchange of information from judicial records
Article 22
Each Contracting Party shall inform any other Party of all criminal convictions and subsequent measures in respect of nationals of the latter Party, entered in the judicial records. Ministries of Justice shall communicate such information to one another at least once a year. Where the person concerned is considered a national of two or more other Contracting Parties, the information shall be given to each of these Parties, unless the person is a national of the Party in the territory of which he was convicted.
Chapter VIII — Final provisions
Article 23
1. Any Contracting Party may, when signing this Convention or when depositing its instrument of ratification or accession, make a reservation in respect of any provision or provisions of the Convention.
2. Any Contracting Party which has made a reservation shall withdraw it as soon as circumstances permit. Such withdrawal shall be made by notification to the Secretary General of the Council of Europe.
3. A Contracting Party which has made a reservation in respect of a provision of the Convention may not claim application of the said provision by another Party save in so far as it has itself accepted the provision.
Article 24
A Contracting Party may, when signing the Convention or depositing its instrument of ratification or accession, by a declaration addressed to the Secretary General of the Council of Europe, define what authorities it will, for the purpose of the Convention, deem judicial authorities.
Article 25
1. This Convention shall apply to the metropolitan territories of the Contracting Parties.
2. In respect of France, it shall also apply to Algeria and to the overseas Departments, and, in respect of Italy, it shall also apply to the territory of Somaliland under Italian administration.
3. The Federal Republic of Germany may extend the application of this Convention to the Land of Berlin by notice addressed to the Secretary General of the Council of Europe.
4. In respect of the Kingdom of the Netherlands, the Convention shall apply to its European territory. The Netherlands may extend the application of this Convention to the Netherlands Antilles, Surinam and Netherlands New Guinea by notice addressed to the Secretary General of the Council of Europe.
5. By direct arrangement between two or more Contracting Parties and subject to the conditions laid down in the arrangement, the application of this Convention may be extended to any territory, other than the territories mentioned in paragraphs 1, 2, 3 and 4 of this article, of one of these Parties, for the international relations of which any such Party is responsible.
Article 26
1. Subject to the provisions of Article 15, paragraph 7, and Article 16, paragraph 3, this Convention shall, in respect of those countries to which it applies, supersede the provisions of any treaties, conventions or bilateral agreements governing mutual assistance in criminal matters between any two Contracting Parties.
2. This Convention shall not affect obligations incurred under the terms of any other bilateral or multilateral international convention which contains or may contain clauses governing specific aspects of mutual assistance in a given field.
3. The Contracting Parties may conclude between themselves bilateral or multilateral agreements on mutual assistance in criminal matters only in order to supplement the provisions of this Convention or to facilitate the application of the principles contained therein.
4. Where, as between two or more Contracting Parties, mutual assistance in criminal matters is practised on the basis of uniform legislation or of a special system providing for the reciprocal application in their respective territories of measures of mutual assistance, these Parties shall, notwithstanding the provisions of this Convention, be free to regulate their mutual relations in this field exclusively in accordance with such legislation or system. Contracting Parties which, in accordance with this paragraph, exclude as between themselves the application of this Convention shall notify the Secretary General of the Council of Europe accordingly.
Article 27
1. This Convention shall be open to signature by the members of the Council of Europe. It shall be ratified. The instruments of ratification shall be deposited with the Secretary General of the Council.
2. The Convention shall come into force 90 days after the date of deposit of the third instrument of ratification.
3. As regards any signatory ratifying subsequently the Convention shall come into force 90 days after the date of the deposit of its instrument of ratification.
Article 28
1. The Committee of Ministers of the Council of Europe may invite any State not a member of the Council to accede to this Convention, provided that the resolution containing such invitation obtains the unanimous agreement of the members of the Council who have ratified the Convention.
2. Accession shall be by deposit with the Secretary General of the Council of an instrument of accession which shall take effect 90 days after the date of its deposit.
Article 29
Any Contracting Party may denounce this Convention in so far as it is concerned by giving notice to the Secretary General of the Council of Europe. Denunciation shall take effect six months after the date when the Secretary General of the Council received such notification.
Article 30
The Secretary General of the Council of Europe shall notify the members of the Council and the government of any State which has acceded to this Convention of:
a) the names of the signatories and the deposit of any instrument of ratification or accession;
b) the date of entry into force of this Convention;
c) any notification received in accordance with the provisions of Article 5 — paragraph 1, Article 7 — paragraph 3, Article 15 — paragraph 6, Article 16 — paragraph 2, Article 24, Article 25 — paragraphs 3 and 4, Article 26 — paragraph 4;
d) any reservation made in accordance with Article 23, paragraph 1;
e) the withdrawal of any reservation in accordance with Article 23, paragraph 2;
f) any notification of denunciation received in accordance with the provisions of Article 29 and the date on which such denunciation will take effect.
In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
Done at Strasbourg, this 20th day of April 1959, in English and French, both texts being equally authoritative, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to the signatory and acceding governments.
PART 2
TEXT OF FIRST ADDITIONAL PROTOCOL TO 1959 CONVENTION
The member States of the Council of Europe, signatory to this Protocol, Desirous of facilitating the application of the European Convention on Mutual Assistance in Criminal Matters opened for signature in Strasbourg on 20th April 1959 (hereinafter referred to as "the Convention") in the field of fiscal offences; Considering it also desirable to supplement the Convention in certain other respects,
Have agreed as follows:
Chapter I
Article 1
The Contracting Parties shall not exercise the right provided for in Article 2.a of the Convention to refuse assistance solely on the ground that the request concerns an offence which the requested Party considers a fiscal offence.
Article 2
1. In the case where a Contracting Party has made the execution of letters rogatory for search or seizure of property dependent on the condition that the offence motivating the letters rogatory is punishable under both the law of the requesting Party and the law of the requested Party, this condition shall be fulfilled, as regards fiscal offences, if the offence is punishable under the law of the requesting Party and corresponds to an offence of the same nature under the law of the requested Party.
2. The request may not be refused on the ground that the law of the requested Party does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the requesting Party.
Chapter II
Article 3
The Convention shall also apply to:
a) the service of documents concerning the enforcement of a sentence, the recovery of a fine or the payment of costs of proceedings;
b) measures relating to the suspension of pronouncement of a sentence or of its enforcement, to conditional release, to deferment of the commencement of the enforcement of a sentence or to the interruption of such enforcement.
Chapter III
Article 4
Article 22 of the Convention shall be supplemented by the following text, the original Article 22 of the Convention becoming paragraph 1 and the below-mentioned provisions becoming paragraph 2:
"2 Furthermore, any Contracting Party which has supplied the abovementioned information shall communicate to the Party concerned, on the latter's request in individual cases, a copy of the convictions and measures in question as well as any other information relevant thereto in order to enable it to consider whether they necessitate any measures at national level. This communication shall take place between the Ministries of Justice concerned."
Chapter IV
Article 5
1. This Protocol shall be open to signature by the member States of the Council of Europe which have signed the Convention. It shall be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
2. The Protocol shall enter into force 90 days after the date of the deposit of the third instrument of ratification, acceptance or approval.
3. In respect of a signatory State ratifying, accepting or approving subsequently, the Protocol shall enter into force 90 days after the date of the deposit of its instrument of ratification, acceptance or approval.
4. A member State of the Council of Europe may not ratify, accept or approve this Protocol without having, simultaneously or previously, ratified the Convention.
Article 6
1. Any State which has acceded to the Convention may accede to this Protocol after the Protocol has entered into force.
2. Such accession shall be effected by depositing with the Secretary General of the Council of Europe an instrument of accession which shall take effect 90 days after the date of its deposit.
Article 7
1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Protocol shall apply.
2. Any State may, when depositing its instrument of ratification, acceptance, approval or accession or at any later date, by declaration addressed to the Secretary General of the Council of Europe, extend this Protocol to any other territory or territories specified in the declaration and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings.
3. Any declaration made in pursuance of the preceding paragraph may, in respect of any territory mentioned in such declaration, be withdrawn by means of a notification addressed to the Secretary General of the Council of Europe. Such withdrawal shall take effect six months after the date of receipt by the Secretary General of the Council of Europe of the notification.
Article 8
1. Reservations made by a Contracting Party to a provision of the Convention shall be applicable also to this Protocol, unless that Party otherwise declares at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession. The same shall apply to the declarations made by virtue of Article 24 of the Convention.
2. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, declare that it reserves the right:
a) not to accept Chapter I, or to accept it only in respect of certain offences or certain categories of the offences referred to in Article I, or not to comply with letters rogatory for search or seizure of property in respect of fiscal offences;
b) not to accept Chapter II;
c) not to accept Chapter III.
3. Any Contracting Party may withdraw a declaration it has made in accordance with the foregoing paragraph by means of a declaration addressed to the Secretary General of the Council of Europe which shall become effective as from the date of its receipt.
4. A Contracting Party which has applied to this Protocol a reservation made in respect of a provision of the Convention or which has made a reservation in respect of a provision of this Protocol may not claim the application of that provision by another Contracting Party; it may, however, if its reservation is partial or conditional claim the application of that provision in so far as it has itself accepted it.
5. No other reservation may be made to the provisions of this Protocol.
Article 9
The provisions of this Protocol are without prejudice to more extensive regulations in bilateral or multilateral agreements concluded between Contracting Parties in application of Article 26, paragraph 3, of the Convention.
Article 10
The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Protocol and shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.
Article 11
1. Any Contracting Party may, in so far as it is concerned, denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe.
2. Such denunciation shall take effect six months after the date of receipt by the Secretary General of such notification.
3. Denunciation of the Convention entails automatically denunciation of this Protocol.
Article 12
The Secretary General of the Council of Europe shall notify the member States of the Council and any State which has acceded to the Convention of:
a) any signature of this Protocol;
b) any deposit of an instrument of ratification, acceptance, approval or accession;
c) any date of entry into force of this Protocol in accordance with Articles 5 and 6;
d) any declaration received in pursuance of the provisions of paragraphs 2 and 3 of Article 7;
e) any declaration received in pursuance of the provisions of paragraph 1 of Article 8;
f) any reservation made in pursuance of the provisions of paragraph 2 of Article 8;
g) the withdrawal of any reservation carried out in pursuance of the provisions of paragraph 3 of Article 8;
h) any notification received in pursuance of the provisions of Article 11 and the date on which denunciation takes effect.
In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.
Done at Strasbourg, this 17th day of March 1978, in English and in French, both texts being equally authoritative, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each of the signatory and acceding States.".
Amendment agreed to.
I move amendment No. 86:
In page 215, line 2, to delete "modified" and substitute "applied by Instrument of 14 July 2005".
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Deputies who contributed to a very constructive debate on this Bill. A number of amendments were brought forward which were of considerable assistance to the Parliamentary Counsel. In addition, the debate both here and in committee put a focus on the essential meaning and purpose of these legal provisions.
Question put and agreed to.
The Bill, which is considered to be a Bill initiated in the Dáil in accordance with Article 20.2.2° of the Constitution, will be sent to the Seanad.
Sitting suspended at 6.35 p.m. and resumed at 7 p.m.