I dtús báire, there is a request from the Minister to make corrections of a typological nature to the Bill.
Criminal Justice (Miscellaneous Provisions) Bill 2022: From the Seanad
In respect of Seanad amendments Nos. 8, 18 and 33, and pursuant to Standing Order 196, I request the Leas-Cheann Comhairle to direct the Clerk to make a number of corrections of a typographical nature to the Bill.
Seanad amendment No. 8 inserts subsections (5), (6) and (7) into section 23 of the Bill. However, consequential renumbering of the existing subsections (5) to (12) has not been reflected and is required.
Two punctuation errors have been identified in Seanad amendments Nos. 18 and 33.
In Seanad amendment No. 18 in subsection (1B) being inserted by section 51, at the end of paragraph (g), "[comma] and" should be replaced by a full stop.
In Seanad amendment No. 33, at the end of the inserted paragraph 13A of the Schedule, the comma should be replaced by a full stop.
Also in Seanad amendment No. 18, text is inserted referring to "subsection (3)(b)" of section 46 of the Criminal Justice (Mutual Assistance) Act 2008. There should be no reference to paragraph (b) here and the reference should be to "subsection (3)" only.
I respectfully request that the Clerk be directed to carry out these corrections. I can furnish colleagues with copies of the changes I have just requested.
Is that agreed? Agreed.
The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendments Nos. 1, 6, 18 and 32 are related and may be discussed together.
Seanad amendment No. 1:
Title: In page 5, line 12, to delete “to provide” and substitute the following:
“to provide for assistance between the State and the European Public Prosecutor’s Office, and for that purpose and other purposes to amend the Criminal Justice (Mutual Assistance) Act 2008 and the Criminal Justice (Joint Investigation Teams) Act 2004; to provide”.
Amendments Nos. 1, 6, 18 and 32 provide a mechanism for Ireland's co-operation with the European Public Prosecutor's Office, EPPO. It is an independent EU body with responsibility for investigating and prosecuting crimes against the financial interests of the EU and participating member states. It commenced its operations in 2021.
While Ireland has not opted in to date, we have been clear that we fully support and wish to co-operate with EPPO. Legal difficulties arise in using existing international mutual legal assistance agreements as a basis for EPPO co-operation. Ireland has argued for the creation of an EU legal instrument to facilitate this but, in the absence of such an instrument, the Office of the Attorney General has advised changes to domestic legislation are required to allow requests for co-operation to be made directly by EPPO on a unilateral basis. These amendments, in essence, give effect to those changes.
The approach taken is to amend the Criminal Justice (Mutual Assistance) Act 2008. A new Part 7B is being inserted. This makes general provision for co-operation with EPPO and then specifies, section by section, the modifications that will apply when dealing with EPPO requests. While specific technical provision is required for EPPO in respect of particular categories of requests, broadly such requests will be treated in the same way as if made by the relevant national authorities of member states.
Seanad amendment agreed to.
Seanad amendments Nos. 2 and 37 are related and may be discussed together.
Seanad amendment No. 2:
Title: In page 5, lines 15 and 16, to delete “and the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014”.
These amendments provide for a change in the composition of the DNA database system oversight committee. The provision being repealed provided for a member of the committee to be appointed by the Data Protection Commission, DPC, which has raised concerns in respect of this provision and its compatibility with the requirements of the DPC to be completely independent in the performance of its tasks and exercise of its power. The repeal of section 1(5) will address this concern. In its place, provision is being made for the Minister, in appointing ordinary members, to have regard to the need for data protection expertise within the committee.
Seanad amendment agreed to.
Seanad amendments Nos. 3, 21 and 22 are related and may be discussed together.
Seanad amendment No. 3:
Title: In page 5, line 17, after “1992,” to insert “the Criminal Justice Act 1993, the Criminal Procedure Act 1993,”.
These amendments address an issue identified in a 2018 case where it was found that the Court of Appeal cannot impose a sentence of imprisonment on an adult who had been initially sentenced as a child to children's detention. Amendment No. 21 provides that the sentence in such cases will not preclude a sentence which could have been imposed at the court of trial if the person had reached the age of 18 at that time. This will allow for a sentence of imprisonment to be imposed at appeal stage.
By exception, where the appeal is by a person as an adult against an initial sentence for treason or murder as a child, the mandatory life sentence for such offences will not apply at appeal stage. Instead, the Court of Appeal may impose such sentence as it considers appropriate. This is justified, given the general principle that a mandatory life sentence for treason or murder does not apply to a child. The amendment will apply to any outstanding appeals that have yet to be heard and any appeals that have been heard but where final judgment has not been given.
Amendment No. 22 is similar in effect to amendment No. 22 but deals with appeals by the Director of Public Prosecutions, DPP, against the leniency of an initial sentence. A similar exception is provided in respect of an initial sentence on conviction for treason or murder and the same transition provisions are also provided.
Amendment No. 3 is a consequential change to the Long Title.
In essence, we are closing a gap in law as exposed by a court judgment. The DPP also asked us to consider the matter and close the gap.
Seanad amendment agreed to.
Seanad amendments Nos. 4, 7, 11, 12, 14, 19, 24 to 28 inclusive, 30, 31, 35, 36, 38 and 40, are related and will be discussed together.
Seanad amendment No. 4:
TITLE: In page 5, line 18, after “1997,” to insert “the Criminal Justice (Theft and Fraud Offences) Act 2001,”.
These are a number of technical and typographical amendments. They are grouped together for consideration, as the Leas-Cheann Comhairle outlined. Amendment No. 7 reflects the change in name of what is now the Department of Public Expenditure, National Development Plan Delivery and Reform. Amendment No. 11 is a transitional provision to ensure that medical evidence certificates signed prior to the changes made to section 25 of the 1997 Act coming into effect will remain valid and will not be affected.
Amendments Nos. 12 and 14 correct typographical errors which were identified in section 28. Amendment No. 26 addresses a minor drafting issue in the Criminal Justice (Theft and Fraud Offences) Act 2001 to clarify that in the relevant section both a fine and imprisonment may be imposed. Amendment No. 28 addresses a minor cross-referencing issue in the Garda Síochána Act 2005 arising from a subsequent amendment. A further set of amendments provide for consequential changes to a number of other enactments arising from the new non-fatal strangulation offences.
Sections 3A and 4A are being inserted into the Non-Fatal Offences against the Person Act 1997. The effect of these amendments to is extend existing provisions which are currently applicable to the existing section 3, assault causing harm, and section 4, causing serious harm, offences, so that they will now also cover section 3A and-or section 4A offences, which is non-fatal strangulation.
Seanad amendment agreed to.
Seanad amendments Nos. 5 and 33 are related and will be discussed together.
Seanad amendment No. 5:
TITLE: In page 5, line 18, after “2006,” to insert the following:
“the Broadcasting Act 2009, the Communications (Retention of Data) Act 2011, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014,”.
Amendment No. 33 provides for consequential amendments to the Broadcasting and Other Media Regulation Acts 2009 and 2022 arising from the new offences introduced under this Act. It follows the pattern in those Acts of scheduling matters that might be subject to regulation of online media and covers the new offences provided in this Bill related to stalking, harassment and non-fatal strangulation. It also covers the new anonymity provisions in relation to the harassment and stalking offences, and indeed the breaches of civil orders. The effect of this provision will be to allow the Online Safety Commissioner, working under Coimisiún na Mean, to develop online safety codes which require certain online platforms to minimise, at a systemic level, the availability of online content by which a person commits any of the offences that are covered. These codes may also set out standards that an online platform must follow in relation to user complaints relating to this type of conduct.
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 1: In page 5, between lines 26 and 27, to insert the following:
“(3) The Criminal Justice (Mutual Assistance) Acts 2008 and 2015 and Part 6 may be cited together as the Criminal Justice (Mutual Assistance) Acts 2008 to 2023.”
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 2: In page 6, line 5, to delete “Expenditure and Reform” and substitute “Expenditure, National Development Plan Delivery and Reform”.
Seanad amendment agreed to.
Seanad amendments Nos. 8 to 10 inclusive, 13, and 15 to 17 inclusive, are related and will be discussed together.
Seanad amendment No. 8:
Section 23: In page 17, between lines 37 and 38, to insert the following:
“(5) An order under subsection (4) shall be in writing.
(6) A copy of an order under subsection (4) shall be given to—
(a) the person against whom the order is made (‘the subject of the order’),
(b) the other person, referred to in subsection (4),
(c) the member of the Garda Síochána in charge of the Garda Síochána station for the area in which the person referred to in paragraph (b) resides, and
(d) if the subject of the order is sentenced to a period of imprisonment, the person for the time being in charge of the place where the subject of the order is, or is to be, imprisoned.
(7) The validity of an order under subsection (4) shall not be affected by non-compliance with subsection (6).”.
These amendments provide for further enhancements to the stalking and harassment measures in the Bill. Amendments Nos. 8 and 10 complement the provisions around non-contact orders which may be imposed as a result of a conviction for stalking and harassment offences. They will ensure that such orders are properly notified and provided in writing to the relevant parties, including the alleged victim and local gardaí. This facilitates the enforcement of the order and, of course, a potential prosecution for breach.
Amendment No. 9 provides for restrictions on the publication of the identity of alleged victims of harassment and stalking offences under section 10 of the 1997 Act. It provides that it is an offence to publish or broadcast information, photographs, depictions or representations of physical likeness which would likely lead to identification of the alleged victim. Harassment and stalking offences tend to involve a serious invasion of a person's privacy, and there is a high risk that publication of the victim’s identity may subject the victim to further distress as well as secondary or repeat victimisation.
Amendment No. 17 introduces a similar provision for cases involving the breach of a section 28 civil order. It places restrictions on the publication of the identity of both the complainant and the defendant in such cases. This mirrors the provision in place in relation to breaches of orders under the Domestic Violence Act 2018.
Amendments Nos. 13, 15 and 16 provide for the making of civil restraining orders under section 28 on an urgent basis. They allow for a short-term order to be made ex parte, that is, without notice to the respondent, where there are reasonable grounds to believe that there is an immediate risk to the safety and welfare of the applicant. An order made ex parte will be valid for up to eight days. This allows protection to be put in place immediately while placing the respondent on notice. Orders will be also be available where an application is made on notice but is not immediately determined. This allows the court to make a temporary order pending the determination of the application.
If we take all of these together, these orders will ensure that urgent relief is available where it is needed as victims may be provided with an immediate order safeguarding them from any ongoing behaviour as they await a final determination of their section 28 application. These provisions on the restriction of identification will also be an important safeguard for victims in these types of cases. The restrictions provided may be waived by the alleged victim, or may be disapplied by the court where it feels it is appropriate.
I welcome these amendments. If the Minister recalls, they were something she promised in regard to the passage of the harassment Bill. In terms of a procedure, if there was an inclination for a victim to waive anonymity, how would that be? Would they apply to the court to do that? Would the court make the decision on that? In terms of access to the court, is there any fast track or how would that apply to somebody who is under enormous pressure in an immediate sense? How would they get access to ensure they could get such a restraining order to be given by the court as quickly as possible?
Ms Sharon Loughran is a paediatric nurse who lives in Newry. She works with children from both sides of the community in terms of the work she does. This morning she woke up at 3 a.m. to see her car in an inferno and the side of her house melting as a result of a 12th July sectarian attack on her because she is a woman from the nationalist community who is involved in political activism and is trying to save her local hospital. I wanted to put it on the record of the Dáil because we have a very short period of time left.
Does this relate to the amendments, Deputy?
I will stop in two seconds but this is an horrendous act and it is important the political establishment allows for no tolerance in relation to these acts. I thank the Leas-Cheann Comhairle for her indulgence.
It took me a little while, so that was my indulgence.
I was listening and just want to clarify a point. The victim can obviously waive their right to anonymity and that then applies to the person in question that there is not a restriction on naming who they are. Also if the victim is going directly to the judge-----
Is it the decision of the person or do they have to indicate their willingness to waive anonymity to a court to make the decision?
As is the case generally, it is that they make their views known to the judge and the judge then makes that decision and allows that to apply. The person can obviously make that decision and it is not for the judge to apply that.
In terms of access to the court, if it is required on a quick basis, there is the ex parte approach that An Garda Síochána can apply on their behalf and make sure that this happens as quickly as possible and that there is no delay. As for the eight days, we obviously have to give the other person the opportunity to come back and to give their side and to explain whether they believe it should be extended or not but there is that provision there to allow for it to be done ex parte.
I thank the Minister.
Again, I acknowledge this issue was raised when we were processing Coco's Law. I appreciate it takes time but I am absolutely confident this will enhance that Bill.
We finally got there.
We got there, as is generally the case but it is a welcome addition for anybody who is in this situation.
Seanad amendment agreed to.
Seanad amendment No. 9:
Section 24: In page 18, between lines 26 and 27, to insert the following:
“Prohibition on publication or broadcast of certain material
24. The Act of 1997 is amended by the insertion of the following section after section 10:
“10A. (1) Subject to this section, a person (other than the alleged victim) who, where a person is charged with an offence under section 10, publishes or broadcasts identifying material shall be guilty of an offence.
(2) Subsection (1) shall not apply where the alleged victim consents in court to being identified.
(3) The court in which proceedings for the offence are brought may, where satisfied that it is in the interests of justice to do so, direct that such information, photograph, depiction or other representation to which subsection (1) applies as the court may specify may be published or broadcast in such manner, and subject to such conditions, as may be specified in the direction.
(4) Before giving a direction under subsection (3), the court shall take into account—
(a) the views of the alleged victim, and
(b) the nature or circumstances of the case, and in particular the effect of the publication or broadcast concerned on the alleged victim.
(5) A direction given under subsection (3) shall be in writing.
(6) A person who contravenes the terms of a direction given under subsection (3) shall be guilty of an offence.
(7) A person who is guilty of an offence under subsection (1) or (6) is liable—
(a) on summary conviction to a class B fine or to imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years, or both.
(8) It shall be a defence for a person who is charged with an offence under subsection (1) or (6) to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect—
(a) in the case of an offence under subsection (1), that the information, photograph, depiction or other representation published or broadcast was identifying information, or
(b) in the case of an offence under subsection (6), that the information, photograph, depiction or other representation was published or broadcast in contravention of the terms of a direction given under
subsection (3).
(9) This section is without prejudice to any other enactment or rule of law that operates to prohibit the publication or broadcast of identifying material.
(10) In this section—
‘alleged victim’, in relation to an offence under section 10, means the alleged victim of that offence;
‘broadcast’ has the same meaning as it has in the Broadcasting and Other Media Regulation Acts 2009 and 2022;
‘identifying material’, in relation to an offence under section 10, means—
(a) information, or
(b) a photograph, depiction or other representation of the physical likeness of the alleged victim, that is likely to enable the identification of the alleged victim; ‘publish’ means publish, other than by way of broadcast, to the public or a portion of the public.”.”.
Seanad amendment agreed to.
Seanad amendment No. 10:
Section 24: In page 18, line 31, to delete “section,” and substitute “section (other than subsections (5) to (7)),”.
Seanad amendment agreed to.
Seanad amendment No. 11:
Section 25: In page 19, between lines 16 and 17, to insert the following:
“(2) The validity of a certificate to which section 25 of the Act of 1997 applies that was signed by a registered medical practitioner before the coming into operation of subsection (1) shall not be affected by such coming into operation.”.
Seanad amendment agreed to.
Seanad amendment No. 12:
Section 27: In page 20, line 9, to delete “a”.
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 27: In page 20, line 13, to delete “An application” and substitute “Subject to subsection (7), an application”.
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 27: In page 20, line 23, to delete "the applicant, or where relevant, a person" and substitute "the applicant or, where relevant, a person".
Seanad amendment agreed to.
Seanad amendment No. 15:
Section 27: In page 20, line 33, to delete "An order" and substitute "Subject to subsections (9) and (13), an order".
Seanad amendment agreed to.
Seanad amendment No. 16:
Section 27: In page 20, between lines 34 and 35, to insert the following:
"(7) An application under subsection (1) may be made ex parte, where grounded on an affidavit or information sworn by the applicant.
(8) An order under this section may be made on an application to which subsection (7) applies where the court, having regard to the particular circumstances of the case, is of the opinion that there are reasonable grounds for believing that there is an immediate risk to the safety and welfare of the applicant.
(9) An order under this section that is made under subsection (8) shall have effect for a period of 8 days from the day on which it is made, or such shorter period as may be specified in the order.
(10) Where an order under this section is made under subsection (8)—
(a) a note of evidence given by the applicant shall be prepared forthwith—
(i) by the judge,
(ii) by the applicant or by the applicant's solicitor and approved by the judge, or
(iii) as otherwise directed by the judge, and
(b) a copy of the order, the affidavit or information sworn under subsection (7) and the note of evidence shall be served on the respondent as soon as practicable.
(11) The court, on making an order under this section under subsection (8), shall cause a copy of the order to be given or sent, as soon as practicable—
(a) to the applicant, and
(b) to such of the persons referred to in paragraphs (d), (e) and (f) of section 34(1) as the court considers appropriate.
(12) The court, on an application under subsection (1) that is made on notice to the respondent, or between the making of that application and its determination, may, pending the determination of the application, make an order under this section (in this Part referred to as an "interim order") where it is of the opinion that it is necessary and proportionate to do so for the purpose of protecting the safety and welfare of the applicant.
(13) An interim order shall cease to have effect on the determination by the court of the application under subsection (1).
(14) The court, on making an interim order, shall cause a copy of the interim order to be given or sent, as soon as practicable—
(a) to the applicant,
(b) to the respondent, and
(c) to such of the persons referred to in paragraphs (d), (e) and (f) of section 34(1) as the court considers appropriate.
(15) The validity of an order under this section that is made under subsection (8), or an interim order, shall not be affected by non-compliance with subsection (11) or (14), as the case may be.
(16) Sections 29 and 34 shall not apply to an order under this section that is made under subsection (8) or to an interim order.".
Seanad amendment agreed to.
Seanad amendment No. 17:
Section 45: In page 26, between lines 28 and 29, to insert the following:
"Prohibition on publication or broadcast of certain material relating to offence under
section 43
45. (1) Subject to this section, where a person is charged with an offence under section 43, a person (other than the relevant person) who publishes or broadcasts identifying material commits an offence.
(2) Subsection (1) shall not apply where the relevant person consents in court to being identified or to the person charged with the offence being identified, or both.
(3) The court in which proceedings for the offence are brought may, where satisfied that it is in the interests of justice to do so, direct that such information, photograph, depiction or other representation to which subsection (1) applies as the court may specify may be published or broadcast in such manner, and subject to such conditions, as may be specified in the direction.
(4) Before giving a direction under subsection (3), the court shall take into account—
(a) the views of the relevant person, and
(b) the nature or circumstances of the case, and in particular the effect of the publication or broadcast concerned on the relevant person.
(5) A direction given under subsection (3) shall be in writing.
(6) A person who contravenes the terms of a direction given under subsection (3) commits an offence.
(7) A person who commits an offence under subsection (1) or (6) is liable—
(a) on summary conviction to a class B fine or to imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years, or both.
(8) It shall be a defence for a person who is charged with an offence under subsection (1) or (6) to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect—
(a) in the case of an offence under subsection (1), that the information, photograph,
depiction or other representation published or broadcast was identifying material, or
(b) in the case of an offence under subsection (6), that the information, photograph, depiction or other representation was published or broadcast in contravention of the terms of a direction given under subsection (3).
(9) This section is without prejudice to any other enactment or rule of law that operates to prohibit the publication or broadcast of identifying material.
(10) In this section—
"broadcast" has the same meaning as it has in the Broadcasting and Other Media Regulation Acts 2009 and 2022;
"identifying material", in relation to an offence under section 43, means—
(a) information, or
(b) a photograph, depiction or other representation of the physical likeness of the relevant person or of the person charged with the offence,
that is likely to enable the identification of the relevant person or of the person charged with the offence;
"publish" means publish, other than by way of broadcast, to the public or a portion of the public;
"relevant person", in relation to an offence under section 43, means the applicant for whose benefit the order concerned was made.".
Seanad amendment agreed to.
Seanad amendment No. 18:
In page 26, after line 32, to insert the following:
"PART 6
AMENDMENT OF CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008
Definition (
Part 6
)
46. In this Part, "Act of 2008" means the Criminal Justice (Mutual Assistance) Act 2008.
Amendment of section 2(1) of Act of 2008
47. Section 2(1) of the Act of 2008 is amended by the insertion of the following definitions:
" 'EPPO' means the European Public Prosecutor's Office established under Article 3 of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office ('the EPPO'), as amended by
Commission Delegated Regulation (EU) 2020/2153 of 14 October 2020;
'EPPO request' means a request for assistance that is made by EPPO
in accordance with section 6 (as applied by section 94K) and the Part 7B Regulations (if any) and includes a request that is deemed under section 94F(3) to have been so made;
'Part 7B Regulations' has the meaning assigned to it by section 109(1B);
'relevant EPPO member state' means a member state of the European Union—
(a) that participates in enhanced cooperation on the establishment of EPPO in accordance with Article 86(1) of the Treaty on the Functioning of the European Union or by virtue of a decision adopted in accordance with Article 331(1) of that Treaty, and
(b) where EPPO is conducting a criminal investigation or criminal proceedings that are the subject of an EPPO request;".
Application for purposes of Part 7B
48. The Act of 2008 is amended by the insertion of the following section after section 2:
"Application for purposes of Part 7B
2A. This Act shall, subject to Part 7B and with all other necessary modifications, apply to the provision of assistance referred to in section 94F(1) as it applies to the provision of mutual assistance between the State and a designated state.".
Amendment of section 53 of Act of 2008
49. Section 53 of the Act of 2008 is amended—
(a) in subsection (7)(b), by the substitution of "subsections (8) and (9)" for "subsection (8)", and
(b) by the insertion of the following subsection after subsection (8):
"(9) Where property recovered by the execution of a confiscation cooperation order transmitted by or on behalf of a court in a designated state, other than a member state or the United Kingdom, is a sum of money or the proceeds of a sale under subsection (7)(b), the Court, on application by the Central Authority and in accordance with the relevant international instrument, may—
(a) order the money or the proceeds of sale to be transferred to the designated state, or
(b) order part of the money or the proceeds of sale to be transferred to the designated state and the remaining balance shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.".
Assistance in criminal matters between State and EPPO
50. The Act of 2008 is amended by the insertion of the following Part after Part 7A:
"PART 7B
ASSISTANCE IN CRIMINAL MATTERS BETWEEN STATE AND EPPO
CHAPTER 1
General
Application of Part
94F. (1) This Part shall apply to the provision of assistance in criminal matters between the State and EPPO.
(2) This Part shall apply to EPPO requests whether made before, on or after the coming into operation of section 50 of the Criminal Justice (Miscellaneous Provisions) Act 2023.
(3) Where, before the coming into operation of section 50 of the Criminal Justice (Miscellaneous Provisions) Act 2023, EPPO has sought assistance from the State, the seeking of such assistance shall, for the purposes of this Part, be deemed—
(a) to be an EPPO request,
(b) to have been made in accordance with this Act, and
(c) subject to subsection (4), to have been received by the State on the coming into operation of that section.
(4) Where assistance referred to in subsection (3) involves—
(a) the notification of the Minister as referred to in subsection (1)(d) of section 27, subsection (2) of that section shall apply as if 'and at the latest within a period specified in subsection (7),' was deleted, and
(b) an external freezing order, section 35(3) shall apply as if 'and, whenever practicable, within 24 hours of receipt of the order and a duly completed certificate' was deleted.
Cooperation with EPPO
94G. (1) The State shall cooperate with EPPO in respect of EPPO requests.
(2) An EPPO request and a request to EPPO by the State may be made under this Act, notwithstanding that such requests are not made in accordance with the provisions of an international instrument.
(3) Where the State has received a request in accordance with a relevant international instrument from a member state that is a relevant EPPO member state, the Minister may, notwithstanding the purposes permitted by the relevant international instrument, permit the evidence and information obtained in the State in compliance with the request, to be shared by the member state with EPPO.
(4) Where the State has received a request referred to in subsection (3), assistance shall not be refused solely on the ground that evidence or information regarding the request is to be provided by the State to EPPO.
Modification of references for purposes of Part (general)
94H. For the purposes of this Part a reference in this Act—
(a) to a member state shall, subject to paragraph (b), unless the context otherwise requires, be construed as a reference to a relevant EPPO member state,
(b) to a request from a member state shall be construed as a reference to an EPPO request,
(c) to an assurance by a requesting authority shall, subject to section 94AG and paragraph (c) of section 94AQ, be construed as a reference to an assurance by—
(i) EPPO, or
(ii) the relevant EPPO member state in which EPPO is conducting a criminal investigation or criminal proceedings that are the subject of an EPPO request,
(d) to an order, an interception order, a warrant or a document being issued, or made, by EPPO shall be construed as including a reference to an order, an interception order, a warrant or a document, as the case may be, being issued, or made, by the relevant EPPO member state on the request of EPPO, and
(e) to the law of the designated state shall—
(i) in section 15(2)(c)(iv), be construed as a reference to the law of the relevant EPPO member state,
(ii) in section 17(3)(a), be construed as a reference to the law of the relevant EPPO member state, and
(iii) in section 66(5), be construed as a reference to the law of the relevant EPPO member state.
CHAPTER 2
Modification of Part 1 for purposes of Part
Application of section 2 for purposes of Part
94I. For the purposes of this Part, section 2(1) shall apply subject to the following and any other necessary modifications:
(a) in the definition of 'criminal conduct', paragraph (b) shall be construed as if the following paragraph were substituted for that paragraph:
'(b) which occurs in a state (other than the State) and would, if it occurred in the State, constitute an offence;',
(b) in the definition of 'criminal investigation', paragraph (a) shall be construed as if the following paragraph were substituted for that paragraph:
'(a) means an investigation conducted by EPPO, and',
(c) the definition of 'criminal proceedings' shall apply as if paragraph (d) was deleted,
(d) in the definition of 'offence'—
(i) paragraph (a) shall be construed as if the following paragraph were substituted for that paragraph:
'(a) means an offence in respect of which an EPPO request may be made,',
and
(ii) in paragraph (b), as if 'if or to the extent that the relevant international instrument or the law of the designated state concerned provides for mutual assistance in respect of such an offence,' was deleted,
and
(e) in the definition of 'requesting authority'—
(i) paragraph (a) shall be construed as if the following paragraph were substituted for that paragraph:
'(a) EPPO, or',
and
(ii) in paragraph (b), the reference to any other authority in that state shall be construed as a reference to any person.
Application of section 3 for purposes of Part
94J. For the purposes of this Part, section 3 shall apply subject to the following and any other necessary modifications—
(a) as if paragraph (c) of subsection (1) was deleted, and
(b) a reference in subsection (1) to specified in the relevant international instrument shall be construed as a reference to specified in or under this Act.
Application of section 6 for purposes of Part
94K. For the purposes of this Part, section 6 shall be construed as if the following section were substituted for that section:
'6. (1) Subject to the provisions of this Act concerning particular requests and such matters as may be provided for in Part 7B Regulations (if any), an EPPO request shall—
(a) be addressed to the Central Authority,
(b) be in writing or in any form capable of producing a written record under conditions allowing its authenticity to be established, and
(c) if not in the Irish, or English, language, be accompanied by a translation into either of those languages.
(2) The Minister may—
(a) accept an EPPO request and any supporting or related documents as evidence of the matters mentioned in them unless he or she has information to the contrary,
(b) seek such additional information from EPPO as may be necessary to enable a decision to be taken on an EPPO request, and
(c) accept a request from EPPO and treat the request as an EPPO request notwithstanding that the request is expressed as a request made in accordance with a relevant international instrument.
(3) Action on an EPPO request may be postponed by the Minister if the action would prejudice criminal proceedings or a criminal investigation.
(4) Before refusing an EPPO request or postponing action on it, the Minister shall, where appropriate and having consulted EPPO, consider whether the request may be granted partially or subject to such conditions as he or she considers necessary.
(5) Reasons shall be given for any such refusal or postponement.
(6) The Minister shall inform EPPO of any circumstances that make it impossible to comply with an EPPO request or are likely to significantly delay compliance.'.
Application of section 7 for purposes of Part
94L. For the purposes of this Part, section 7 shall apply subject to the modification (and any other necessary modifications) that a reference in that section to the designated state concerned or the designated state shall be construed as a reference to EPPO.
Application of section 8 for purposes of Part
94M. For the purposes of this Part, section 8 shall apply subject to the modification that the reference in subsection (2) to the function of co-operating, in accordance with the relevant international instrument, with corresponding persons or bodies in designated states shall be construed as including a reference to co-operating with EPPO as referred to in section 94G(1).
Application of section 9 for purposes of Part
94N. For the purposes of this Part, section 9 shall apply subject to the following and any other necessary modifications—
(a) a reference to—
(i) a competent authority, and
(ii) a competent authority in a designated state, shall be construed as a reference to EPPO,
(b) in subsection (1), as if 'in accordance with the relevant international instrument and' was deleted,
(c) as if subsections (3) and (5) were deleted, and
(d) in subsection (4), as if the 'pursuant to the relevant international instrument' was deleted.
CHAPTER 3
Modification of Part 2 for purposes of Part
Application of section 14 for purposes of Part
94O. For the purposes of this Part, section 14 shall apply subject to the following and any other necessary modifications—
(a) in subsection (1), the reference to a competent authority in that state shall be construed as a reference to EPPO,
(b) in subsection (2), the reference to a competent authority in a designated state shall be construed as a reference to EPPO,
(c) in subsection (4), a reference—
(i) to the competent authority shall be construed as a reference to EPPO, and
(ii) to the relevant international instrument shall be construed as a reference to EPPO,
and
(d) in subsection (5), the reference to—
(i) the competent authority, and
(ii) the authority, shall be construed as a reference to EPPO.
Application of section 17 for purposes of Part
94P. For the purposes of this Part, section 17 shall apply (subject to the modification in section 94H(e)(ii) and any other necessary modifications) as if subsection (3)(c) was deleted.
Application of section 20 for purposes of Part
94Q. For the purposes of this Part, section 20 shall apply subject to the modification (and any other necessary modifications) that the reference in subsection (2) to the competent authority in the designated state concerned shall be construed as a reference to EPPO.
CHAPTER 4
Modification of Part 3 for purposes of Part
Application of section 24 for purposes of Part
94R. For the purposes of this Part, section 24 shall apply subject to the following and any other necessary modifications—
(a) in subsection (1)—
(i) in paragraph (b), the reference to issued in the member state shall be construed as a reference to issued by EPPO, and
(ii) in paragraph (c), a reference to a competent authority in a member state shall be construed as a reference to EPPO,
(b) in subsection (1)(d)(i), the reference to the competent authority in the former member state shall be construed as a reference to EPPO, and
(c) in subsection (2)—
(i) as if paragraph (a) was deleted, and
(ii) in paragraph (g), as if 'pursuant to Article 20(2)(a) of the 2000 Convention' was deleted.
Application of section 25 for purposes of Part
94S. For the purposes of this Part, section 25 shall apply subject to the following and any other necessary modifications—
(a) in subsection (2)(b)(ii), the reference to the member state shall be construed as a reference to EPPO,
(b) in subsection (3)(a), the reference to the requesting state shall be construed as a reference to the relevant EPPO member state,
(c) in subsection (6), a reference to a competent authority in the member state shall be construed as a reference to EPPO, and
(d) as if the following subsection were substituted for subsection (7):
'(7) In considering a request for a transcript of a recording to which this section applies, the Minister shall have regard to all the circumstances of the particular case, and may make the granting of such a request subject to any condition to which authorisation of the interception may be subject.'.
Application of section 27 for purposes of Part
94T. For the purposes of this Part, section 27 shall apply subject to the following and any other necessary modifications—
(a) a reference to—
(i) a competent authority, and
(ii) a competent authority in a member state, shall be construed as a reference to EPPO, and
(b) in subsection (1), as if the following paragraph were substituted for paragraph (d):
'(d) EPPO notifies the Minister accordingly.'.
Application of section 28 for purposes of Part
94U. For the purposes of this Part, section 28 shall apply subject to the modification (and any other necessary modifications) that the reference in subsection (3)(b) to issued in the member state shall be construed as a reference to issued by EPPO.
CHAPTER 5
Modification of Part 4 for purposes of Part
Modification of reference to competent authority
94V. For the purposes of this Part, a reference in Part 4 to—
(a) a competent authority in a designated state shall be construed as if 'in a designated state' was deleted, and
(b) a competent judicial authority in the designated state, shall be construed as a reference to EPPO.
Application of section 31 for purposes of Part
94W. For the purposes of this Part, section 31 shall apply subject to the following and any other necessary modifications:
(a) as if the following were substituted for the definition of 'competent authority':
' 'competent authority' means EPPO;',
(b) in the definition of 'external freezing order', as if the following paragraph were substituted for paragraph (a):
'(a) taken provisionally by EPPO in criminal proceedings to prevent the destruction, transformation, moving, transfer, disposal or use of specified property in the State that could be subject to confiscation or be evidence in those proceedings, and',
and
(c) as if the following were substituted for the definition of 'issuing state':
' 'issuing state' means EPPO;'.
Application of section 34 for purposes of Part
94X. For the purposes of this Part, section 34 shall apply subject to the following and any other necessary modifications:
(a) subsection (1) shall be construed as if the following were substituted for that subsection:
'(1) A request from EPPO for the enforcement of an external freezing order shall be accompanied by—
(a) a duly certified copy of the order, and
(b) a statement of the grounds for the making of the order.',
(b) as if subsection (2) was deleted,
(c) subsection (3) shall apply as if the reference therein to subsection (2) was deleted,
(d) in subsection (4), the reference to an issuing judicial authority shall be construed as a reference to EPPO, and
(e) in subsection (5), the reference to—
(i) the issuing judicial authority, and
(ii) that judicial authority,
shall be construed as a reference to EPPO.
Application of section 35 for purposes of Part
94Y. For the purposes of this Part, section 35 shall apply subject to the following and any other necessary modifications:
(a) in subsection (2), as if 'and, in the case of a designated state (other than a member state), shall be made with the consent of the Minister' was deleted,
(b) in subsection (3), the reference to a member state shall be construed as reference to EPPO,
(c) as if subsection (6) was deleted, and
(d) in subsection (7)(c), the reference to the issuing judicial authority shall be construed as a reference to EPPO.
Application of section 42 for purposes of Part
94Z. For the purposes of this Part, section 42(2) shall apply subject to the following and any other necessary modifications:
(a) as if 'subject to any provision to the contrary in the relevant international instrument,' was deleted, and
(b) the reference to the designated state concerned shall be construed as a reference to EPPO.
Application of section 45 for purposes of Part
94AA. For the purposes of this Part, section 45(5) shall apply subject to the modification (and any other modifications) that the reference to the issuing judicial authority shall be construed as a reference to EPPO.
Application of section 46 for purposes of Part
94AB. For the purposes of this Part, section 46 shall apply subject to the following and any other necessary modifications:
(a) in subsection (1)—
(i) as if paragraphs (a) and (b) were deleted, and
(ii) in paragraph (d), as if 'in a certificate' was deleted,
(b) as if subsection (2) was deleted, and
(c) in subsection (3)(b)—
(i) the reference to—
(I) the issuing judicial authority concerned, and
(II) the judicial authority, shall be construed as a reference to EPPO, and
(ii) in subparagraph (i), as if 'in the certificate' was deleted.
Application of section 47 for purposes of Part
94AC. For the purposes of this Part, section 47(4) shall apply subject to the modification (and any other modifications) that the reference to the issuing judicial authority shall be construed as a reference to EPPO.
CHAPTER 6
Modification of Part 5 for purposes of Part
Application of section 62 for purposes of Part
94AD. For the purposes of this Part, section 62 shall apply subject to the following and any other necessary modifications—
(a) the definition of 'appropriate authority' shall be construed as including the following paragraph after paragraph (a):
'(ab) EPPO, or', and
(b) subsection (6) shall be construed as if 'permitted by the relevant international instrument or' was deleted.
Application of section 63 for purposes of Part
94AE. For the purposes of this Part, section 63(3) shall apply as if (and with any other necessary modifications) 'permitted by the relevant international instrument or' was deleted.
Application of section 64 for purposes of Part
94AF. For the purposes of this Part, section 64(3) shall apply subject to the modification (and any other necessary modifications) that the reference to a court in the state concerned shall be construed as a reference to a court in the relevant EPPO member state.
Application of section 66 for purposes of Part
94AG. For the purposes of this Part, section 66(5) shall apply subject to the modification (and any other necessary modifications) that the reference to an assurance by a requesting authority shall be construed as a reference to an assurance by the relevant EPPO member state in which EPPO is conducting a criminal investigation or criminal proceedings that are the subject of an EPPO request.
Application of section 67 for purposes of Part
94AH. For the purposes of this Part, section 67 shall apply as if subsection (10) was deleted and subject to any other necessary modifications.
Application of section 70 for purposes of Part
94AI. For the purposes of this Part, section 70 shall apply subject to the following and any other necessary modifications—
(a) in subsection (3), the reference to the requesting state shall be construed as a reference to the relevant EPPO member state, and
(b) in subsection (6), the reference to a judge of the designated state shall be construed as a reference to a judge of the relevant EPPO member state.
Application of section 73 for purposes of Part
94AJ. For the purposes of this Part, section 73 shall apply subject to the following and any other necessary modifications—
(a) the definition of 'appropriate authority' shall be construed as including the following paragraph after paragraph (a):
'(ab) EPPO, or',
(b) in subsection (1), as if ', in accordance with the relevant international instrument,' was deleted, and
(c) in subsection (6), as if 'permitted by the relevant international instrument or' was deleted.
Application of section 74 for purposes of Part
94AK. For the purposes of this Part, section 74 shall apply subject to the following and any other necessary modifications—
(a) as if subsection (3) was deleted, and
(b) in subsection (5)(a), as if 'permitted by the relevant international instrument or' was deleted.
Application of section 75 for purposes of Part
94AL. For the purposes of this Part, section 75 shall apply subject to the following and any other necessary modifications—
(a) as if subsection (3) was deleted,
(b) in subsection (4), a reference to that state shall be construed as a reference to the relevant EPPO member state, and
(c) in subsection (6)(a), as if 'permitted by the relevant international instrument or' was deleted.
Application of section 78 for purposes of Part
94AM. For the purposes of this Part, section 78 shall apply subject to the following (and any other necessary) modification, as if the following paragraph were substituted for paragraph (e) of subsection (1):
'(e) in the case of an EPPO request for the DNA profile of a person who is suspected of having committed the offence concerned whose DNA profile is not in the possession of the Garda Síochána—
(i) a warrant or order issued by EPPO or by an appropriate authority in the relevant EPPO member state on the request of EPPO requiring a person to have identification evidence, other than fingerprints, palm prints or photographs, taken from him or her for the purposes of a criminal investigation, or criminal proceedings, in that member state, or
(ii) a statement issued by EPPO or by an appropriate authority in the relevant EPPO member state on the request of EPPO confirming that the requirements for the taking of a DNA sample from the person under the law of the relevant EPPO member state would be complied with if the person were in that state.'.
Application of section 79 for purposes of Part
94AN. For the purposes of this Part, section 79 shall apply subject to the modification (and any other necessary modifications) that the reference in subsection (10) to the requesting state shall be construed as a reference to the relevant EPPO member state.
Application of section 79A for purposes of Part
94AO. For the purposes of this Part, section 79A shall apply subject to the following (and any other necessary) modification, as if the following were substituted for paragraph (a) of subsection (1):
'(a) is an EPPO request, and'.
Application of section 79C for purposes of Part
94AP. For the purposes of this Part, section 79C shall apply subject to the following and any other necessary modifications:
(a) a reference to a request made pursuant to Article 7 of 2008 Council Decision or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway designated state shall be construed as a reference to an EPPO request,
(b) in subsection (2), as if paragraph (d) was deleted, and
(c) as if subsection (8) was deleted.
CHAPTER 7
Modification of Part 6 for purposes of Part
Application of section 82 for purposes of Part
94AQ. For the purposes of this Part, section 82 shall apply subject to the following and any other necessary modifications—
(a) in subsection (1)(b), the reference to a prosecuting authority shall be construed as including a reference to EPPO,
(b) a reference to issuing authority shall be construed as a reference to EPPO,
(c) in subsections (8) and (9), the reference to that state shall be construed as a reference to the relevant EPPO member state,
(d) in subsection (10)(a), the reference to judicial authorities shall be construed as including EPPO, and
(e) in subsection (11)(b), the reference to law of the state where it was issued shall be construed as a reference to the law of the relevant EPPO member state.
Application of section 83 for purposes of Part
94AR. For the purposes of this Part, section 83 shall apply subject to the modification (and any other necessary modifications) that a reference in subsection (1) to—
(a) the appropriate authority in the designated state, and
(b) that authority, shall be construed as a reference to EPPO.
Application of section 88 for purposes of Part
94AS. For the purposes of this Part, section 88 shall apply subject to the following and any other necessary modifications—
(a) in the definition of 'competent authority in a designated state', the reference to a person or body in that state appearing to the Competent Authority in the State to have the function of receiving or making the request shall be construed as reference to EPPO, and
(b) in the definition of 'controlled delivery', as if 'in accordance with the relevant international instrument' was deleted.
CHAPTER 8
Modification of Part 8 for purposes of Part
Application of section 97 for purposes of Part
94AT. For the purposes of this Part, section 97 shall apply subject to the following and any other necessary modifications, the reference in subsection (1) to—
(a) the designated state concerned, and
(b) a representative of the authority concerned in that state, shall be construed as a reference to EPPO.
Application of section 99 for purposes of Part
94AU. For the purposes of this Part, section 99 shall apply subject to the modification (and any other necessary modifications) that the reference to in accordance with the relevant international instrument shall be construed as a reference to with the consent of EPPO.
Application of section 102 for purposes of Part
94AV. For the purposes of this Part, section 102 shall apply subject to the following and any other necessary modifications—
(a) in subsection (1)(a)(ii), the reference to made or issued by a court, tribunal or authority in a designated state shall be construed as including a reference to made or issued by EPPO,
(b) in subsection (4), the reference to certified by or on behalf of the court, tribunal or authority issuing it shall be construed as including a reference to certified by or on behalf of EPPO,
(c) in subsection (5)—
(i) in paragraph (a), the reference to given by or on behalf of a court, tribunal or authority in a designated state shall be construed as including a reference to given by or on behalf of EPPO,
(ii) as if paragraph (b) was deleted, and
(iii) the reference to such a certificate or seal shall be construed as a reference to such certificate,
and
(d) as if subsection (6) was deleted.
Application of section 103 for purposes of Part
94AW. For the purposes of this Part, section 103 shall apply subject to the following and any other necessary modifications—
(a) the reference to a competent authority in that state shall be construed as a reference to EPPO,
(b) in subsection (1)—
(i) as if 'in accordance with the relevant international instrument' was deleted, and
(ii) as if 'within the meaning of that instrument' was deleted,
and
(c) in subsection (3), as if 'having had regard to the provisions of the relevant international instrument' was deleted.
Application of section 104 for purposes of Part
94AX. For the purposes of this Part, section 104 shall apply (subject to any other necessary modifications) as if ', and shall if so required by the relevant international instrument,' in subsection (1) was deleted.".
Amendment of section 109 of Act of 2008
51. Section 109 of the Act of 2008 is amended by the insertion of the following subsections after subsection (1A):
"(1B) Without prejudice to section 94K, the generality of subsection (1) and subject to the provisions of this Act concerning particular requests, regulations (in this Act referred to as the 'Part 7B Regulations') may be made by the Minister for the purposes of Part 7B and in particular such regulations may make provision for—
(a) the limitations, restrictions or conditions applicable to EPPO requests,
(b) the form of EPPO requests and the information such requests are to provide,
(c) the action that may be taken where the information provided is not sufficient to enable the request to be dealt with,
(d) without prejudice to section 3, the grounds for refusal of EPPO requests,
(e) the requirements relating to the protection, disclosure, use or transmission of information or evidence received under EPPO requests,
(f) the formalities and procedures in dealing with EPPO requests, and
(g) the transmission and mode of transmission of EPPO requests, including, transmission via the International Criminal Police Organisation (Interpol) in urgent cases, and
(1C) Regulations under subsection (1B) may be made by the Minister for the purposes of requests by the State to EPPO and paragraphs (a) to (g) of subsection (1B) shall apply mutatis mutandis to such requests.".
Amendment of
Criminal Justice (Joint Investigation Teams) Act 2004
52. The Criminal Justice (Joint Investigation Teams) Act 2004 is amended—
(a) in section 1—
(i) in subsection (1), by the insertion of the following definition:
" 'EPPO' means the European Public Prosecutor's Office established under Article 3 of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office, as amended by Commission Delegated Regulation (EU) 2020/2153 of 14 October 2020;",
and
(ii) by the insertion of the following subsection after subsection (1):
"(1A) This Act shall apply and has effect, subject to the following and any other necessary modifications—
(a) as if a reference to a competent authority included a reference to EPPO, and
(b) as if a reference to another Member State or other such States included a reference to a relevant EPPO member state (within the meaning of the Criminal Justice (Mutual Assistance) Act 2008).",
and
(b) in section 9(1)—
(i) in paragraph (c), by the substitution of "European Communities," for "European Communities, or",
(ii) in paragraph (d), by the substitution of "Act 2008, or" for "Act 2008,", and
(iii) by the insertion of the following paragraph after paragraph (d):
"(e) one or more officers designated by EPPO.".".
Seanad amendment agreed to.
Seanad amendment No. 19:
Section 50: In page 29, after line 35, to insert the following:
"Amendment of Schedule to
Criminal Law (Jurisdiction) Act 1976
Seanad amendment agreed to.
Seanad amendment No. 20:
Section 50: In page 30, between lines 2 and 3, to insert the following:
"Amendment of Criminal Evidence Act 1992
51. The Criminal Evidence Act 1992 is amended—
(a) in section 12(1), in the definition of "relevant offence"—
(i) by the insertion of the following paragraph after paragraph (b): "(ba) an offence under section 10 (amended by section 23 of the Criminal Justice (Miscellaneous Provisions) Act 2023) of the Non-Fatal Offences against the Person Act 1997;",
(ii) by the insertion of the following paragraph after paragraph (da):
"(db) an offence under section 43(1) of the Criminal Justice (Miscellaneous Provisions) Act 2023;", and
(iii) in paragraph (e), by the substitution of "(ba), (c), (d), (da) or (db)" for "(c), (d) or (da)",
and
(b) in section 14C—
(i) in subsection (2)—
(I) in paragraph (a), by the substitution of "relevant offence" for "sexual offence", and
(II) by the substitution of the following pargraph for paragraph (b):
"(b) a victim of the relevant offence who has attained the age of 18 years is to give evidence,", and (ii) by the insertion of the following subsection after subsection (2): "(2A) The court, in performing its functions under subsection (2), shall have regard to the need to protect the victim from secondary and repeat 24 victimisation, intimidation or retaliation, taking into account— (a) the nature and circumstances of the case, and (b) the personal characteristics of the victim.".".
Provision was made in section 14C(2) of the Criminal Evidence Act 1992 that where a person is accused of a sexual offence and the alleged adult victim is to give evidence, the court may direct that the accused may not personally cross-examine the witness unless the court is of the opinion that the interests of justice require it.
This amendment essentially broadens the scope of this protection to cover "relevant offences" within the meaning of the 1992 Act, which includes offences involving violence or the threat of violence, coercive control, forced marriage and certain other offences. It will also include the new stalking and harassment offences and breaches of civil orders under section 28 of this Bill.
Extending the scope of this provision will help safeguard more victims from intimidation, retaliation and re-victimisation in a courtroom setting. I am hopeful that providing this protection will encourage more victims to come forward.
Seanad amendment agreed to.
Seanad amendment No. 21:
Section 51: In page 30, between lines 15 and 16, to insert the following:
"Amendment of section 2 of Criminal Justice Act 1993
51. (1) Section 2 of the Criminal Justice Act 1993 is amended by the insertion of the following subsections after subsection (4):
"(5) Where the convicted person in relation to whom an application under this section is made is a person who was under the age of 18 years when the sentence was imposed on him by the sentencing court concerned and he has attained the age of 18 years on or before the date on which the application is determined by the Court, the reference in subsection (3)(a) to a sentence which could have been imposed on him by the sentencing court concerned shall be construed as a reference to a sentence which could have been imposed on him by the sentencing court concerned had he attained that age at the time when the sentence was so imposed.
(6) Where subsection (5) applies and the application under this section is in respect of a sentence imposed on a person convicted of treason or murder before the person has attained the age of 18 years, the Court may, notwithstanding section 2 of the Criminal Justice Act 1990, impose such sentence as it considers appropriate.".
(2) The amendments of section 2 of the Criminal Justice Act 1993 effected by subsection (1) shall apply in respect of an application under that section that—
(a) is brought on or after the date of the coming into operation of this section, or
(b) has been brought before the date of the coming into operation of this section where final judgment has not been given before that date.".
Seanad amendment agreed to.
Seanad amendment No. 22:
Section 51: In page 30, between lines 15 and 16, to insert the following:
"Amendment of section 3 of Criminal Procedure Act 1993
52. (1) Section 3 of the Criminal Procedure Act 1993 is amended by the insertion of the following subsections after subsection (8):
"(9) For the purposes of subsection (1)(d), where the appellant is a person
who—
(a) was under the age of 18 years when he was convicted and sentenced at the trial, and
(b) has attained the age of 18 years on or before the date on which the appeal is determined by the Court, the sentence that may be imposed on the person by the Court pursuant to subparagraph (ii) of subsection (1)(d) for some other offence and in substitution for the sentence imposed at the trial shall not be deemed to be a sentence of greater severity by reason only of the fact that the sentence could not have been imposed on the person at the trial given that the person was under the age of 18 years at the time of sentencing.
(10) For the purposes of subsection (2), where the convicted person in relation to whom an appeal against sentence is brought is a person who was under the age of 18 years when the sentence was imposed on them by the court of trial and the person has attained the age of 18 years on or before the date on which the appeal is determined by the Court, the reference in that subsection to a sentence or order which could have been imposed on the convicted person for the offence at the court of trial shall be construed as a reference to a sentence or order which could have been imposed on the convicted person for the offence at the court of trial had he attained that age at the time when the sentence or order was so imposed.
(11) Where subsection (10) applies and the appeal against sentence is in respect of a sentence imposed on a person convicted of treason or murder before the person has attained the age of 18 years, the Court may, notwithstanding section 2 of the Criminal Justice Act 1990, impose such sentence or order as it considers appropriate.".
(2) The amendments of section 3 of the Criminal Procedure Act 1993 effected by subsection (1) shall apply in respect of—
(a) an appeal under subsection (1) of that section against conviction of an offence,
and
(b) an appeal under subsection (2) of that section against sentence for an offence—
where the appeal—
(i) is brought on or after the date of the coming into operation of this section, or
(ii) has been brought before the date of the coming into operation of this section where final judgment has not been given before that date.".
Seanad amendment agreed to.
Seanad amendment No. 23:
Section 51: In page 31, between lines 12 and 13, to insert the following:
"(b) in section 19(2)(b), by the substitution of "12 years" for "7 years",".
This amendment increases the maximum penalty for assault on gardaí and other peace officers from seven years to 12 years. We are all conscious of the dedication and commitment of our front-line workers and the risks they take in the course of their duties. Any police force, but an unarmed force in particular, depends on absolute respect for the safety of its officers.
We cannot accept any violence at any level. While such incidents are rare, there has, sadly, been an increase in them, and we as legislators must send a clear message that any such attacks are deplorable and will be dealt with robustly. I am under no illusions that legislation alone can be a solution to this problem, but a strong deterrent should be in place to reinforce the safety of those who put themselves in harm's way to protect the public, and to demonstrate our solidarity with them.
The penalty for section 3 assault causing harm is being increased from five years to ten years under this Bill. The increase to 12 years in the penalty of assault on a peace office under section 19 will maintain the existing relationship between the section 19 penalty and the section 3 penalty, reflecting the particular importance of protecting police and other front-line workers from aggression and violence in their roles.
I am conscious good arguments may be made that other categories of peace officers should be covered by this provision. However, I emphasise that the section 19 offence complements the already comprehensive provisions in place in respect of assault and that the increased ten-year maximum penalty for assault causing harm will in itself constitute an important protection and deterrent against violence for all members of our society. Members of the Garda Síochána, in particular, face unique challenges, and this section reflects that. I acknowledge the work of Senator Gallagher, the Minister of State, Deputy Richmond, and the former Minister for Justice, Deputy Harris, in bringing forward this amendment.
Nobody in the House would not be very concerned by the increase in violence aimed at members of An Garda Síochána that we can see on social media all the time. I am referring in particular to what new, young gardaí have to face. It is not always physical abuse. Some of the verbal abuse and harassment they endure is very worrying. I do not want to suggest a knee-jerk reaction. Increasing the penalties is not something anyone in the House would object to. Where there is a serious assault causing real harm, there has to be a significant penalty for it. There must be a different strategy to support young, new members of an Garda Síochána who face incredible intimidation on the streets, some of which we have seen on social media. I am interested in hearing the views of the Minister on this matter.
The Deputy is right that this is not a panacea. This will not deal with or respond to all incidents. We need to try to support the Garda. Going back to our conversation last night, it is about making sure the Garda has the necessary resources, numbers and technology, particularly making sure gardaí have body-worn cameras. It has been shown in other jurisdictions where they have been introduced that they benefit the police when they arrive on the scene of an incident or crime in obtaining the first pieces of evidence or information and in protecting them. If people know they are being recorded, it modifies their behaviour. As the Deputy has just mentioned, we often see incidents put up on social media. The perpetrators put up what they want to show. What is important is that gardaí have the evidence and ability to record their version of events. People will be aware of the technology of the Garda and will know it has it. It will be able to go back 15 seconds to record an incident that might have happened to get the full picture to so as to protect gardaí. In other jurisdictions, people's behaviour has been modified because of this. This in itself will not change certain people's behaviour. That is where we hope the rest of the work under way, particularly with regard to younger people, will be effective. There has been a change in attitude towards An Garda Síochána. The level of respect has perhaps declined. I will not say there was fear but people respected a garda walking past them or a garda who issued a direction or questioned them. This is not always the case now. It is about engaging with younger people and making sure we invest in our youth justice strategy and divergent programme. It is about making sure we have gardaí on the beat in our communities and engaging with people so they become known to them and are part of the community. There are many ways in which we can address this. Body-worn cameras are really important in addressing what the Deputy mentioned, namely assaults and attacks on gardaí. The next Bill we will debate will progress this, and I hope we will have body cameras on gardaí as quickly as possible.
Seanad amendment agreed to.
Seanad amendment No. 24:
Section 52: In page 31, between lines 14 and 15, to insert the following:
"Amendment of First Schedule to Extradition (Amendment) Act 1994
52. The First Schedule to the Extradition (Amendment) Act 1994 is amended in paragraph 6 by—
(a) the insertion of the following subparagraph after subparagraph (a):
"(aa) section 3A (non-fatal strangulation or non-fatal suffocation);",
and
(b) the insertion of the following subparagraph after subparagraph (b):
"(ba) section 4A (non-fatal strangulation or non-fatal suffocation causing serious harm);".".
Seanad amendment agreed to.
Seanad amendment No. 25:
Section 54: In page 32, between lines 15 and 16, to insert the following:
"Amendment of Second Schedule to Criminal Justice (Safety of United Nations Workers) Act 2000
54. The Second Schedule to the Criminal Justice (Safety of United Nations Workers) Act 2000 is amended in paragraph 4 of Part I by—
(a) the insertion of the following subparagraph after subparagraph (b):
"(ba) section 3A (non-fatal strangulation or non-fatal suffocation);",
and
(b) the insertion of the following subparagraph after subparagraph (c):
"(ca) section 4A (non-fatal strangulation or non-fatal suffocation causing serious harm);".".
Seanad amendment agreed to.
Seanad amendment No. 26:
Section 54: In page 32, between lines 15 and 16, to insert the following:
"Amendment of Criminal Justice (Theft and Fraud Offences) Act 2001
55. Section 36 of the Criminal Justice ( ft and Fraud Offences)
Act 2001 is amended by the substitution of the following subsection for subsection (3):
"(3) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding—
(a) in the case of an offence under subsection (1), 10 years, or
(b) in the case of an offence under subsection (2), five years, or both.".".
Seanad amendment agreed to.
Seanad amendment No. 27:
Section 55: In page 32, between lines 22 and 23, to insert the following:
"Amendment of Criminal Justice (Terrorist Offences) Act 2005
55. The Criminal Justice (Terrorist Offences) Act 2005 is amended—
(a) in Part 1 of Schedule 2, in paragraph 2, by—
(i) the insertion of the following subparagraph after subparagraph (a):
"(aa) section 3A (non-fatal strangulation or non-fatal suffocation);",
and
(ii) the insertion of the following subparagraph after subparagraph (b):
"(ba) section 4A (non-fatal strangulation or non-fatal suffocation causing serious harm);",
and
(b) in Part 1 of Schedule 6, in paragraph 2, by—
(i) the insertion of the following subparagraph after subparagraph (b):
"(ba) section 3A (non-fatal strangulation or non-fatal suffocation);",
and
(ii) the insertion of the following subparagraph after subparagraph (c):
"(ca) section 4A (non-fatal strangulation or non-fatal suffocation causing serious harm);".".
Seanad amendment agreed to.
Seanad amendment No. 28:
Section 55: In page 32, between lines 22 and 23, to insert the following:
"Amendment of Garda Síochána Act 2005
56. Section 122(5)(b)(ii) of the Garda Síochána Act 2005 is amended by the substitution of "section 51(2)(d)" for "section 51(2)(b)".".
Seanad amendment agreed to.
Seanad amendment No. 29:
Section 55: In page 32, to delete lines 23 to 33 and substitute the following:
"Amendment of Schedule 1 to Criminal Law (Insanity) Act 2006
55. Schedule 1 to the Criminal Law (Insanity) Act 2006 is amended—
(a) in paragraph 1, by the substitution of "appoint. The Minister may also appoint a deputy chairperson to the Review Board, where the Minister, after undertaking such consultation, considers it to be appropriate." for "appoint.",
(b) in paragraph 2, by the substitution of "chairperson and, where applicable, the deputy chairperson" for "chairperson",
(c) in paragraph 7, by the substitution of "chairperson and, where applicable, the deputy chairperson (other than a chairperson or deputy chairperson who is a serving judge)" for "chairperson other than a chairperson who is a serving judge", and
(d) by the insertion of the following paragraph after paragraph 8:
"8A. In the event that the chairperson is temporarily unable to perform his or her functions as chairperson due to absence or incapacity—
(a) where a deputy chairperson has been appointed, the deputy chairperson shall act as chairperson for the duration of the period of absence or incapacity, or
(b) where a deputy chairperson has not been appointed or the deputy chairperson is temporarily unable to act as chairperson due to absence or incapacity, the Minister may appoint—
(i) a member of the Review Board, or
(ii) any other person,
possessing the qualifications referred to in paragraph 2 of this Schedule, to act as chairperson during the period during which the chairperson is unable to so act.".".
The Mental Health Review Board, MHRB, is a quasi-judicial body responsible for the review of the detention of patients in the Central Mental Hospital. Currently, paragraph 1 of Schedule 1 of the Criminal Law (Insanity) Act 2006 outlines the requirements of the membership of the board. There must be a chairperson and such number of ordinary members as determined by the Minister in consultation with the Minister for Health. As it stands, the chairperson must have ten years' experience as a practising barrister or practising solicitor or be a judge or former judge. Should the chairperson be incapacitated or unavailable, there is, at present, no means to provide for a substitute. This presents a risk given the strict time limits applicable to such reviews.
This amendment will establish a deputy chairperson role for the board with the same qualification requirements as the chair and will require the deputy chair to act as chair where the chair is not present. This will ensure that the reviews due to take place will still be possible even if the chairperson is unavailable. Should it arise that both the chair and deputy chair are unavailable, which could happen, the Minister may appoint a suitably qualified individual to act temporarily. An amendment to Schedule 1 to the Criminal Law (Insanity) Act 2006 is already in the Bill to this effect.
Seanad amendment agreed to.
Seanad amendment No. 30:
Section 56: In page 32, to delete lines 34 and 35, and in page 33, to delete lines 1 to 5 and substitute the following new section:
"Amendment of Criminal Justice Act 2006
56. The Criminal Justice Act 2006 is amended—
(a) in section 16, by the insertion of the following subsection after subsection (6):
"(7) A reference in subsection (1) to a person being sent forward for trial shall, in relation to proceedings before a Special Criminal Court, include, where appropriate, a reference to such a person being charged before that court.",
and
(b) in paragraph 2 of Schedule 3, by the insertion of the following after "section 3 (assault causing harm)":
"section 3A (non-fatal strangulation or non-fatal suffocation)".".
Seanad amendment agreed to.
Seanad amendment No. 31:
Section 58: In page 33, between lines 7 and 8, to insert the following:
"Amendment of Schedule 2 to Criminal Justice Act 2007
58. Schedule 2 to the Criminal Justice Act 2007 is amended in paragraph 2 by the insertion of the following subparagraph after subparagraph (a):
"(aa) section 4A (non-fatal strangulation or non-fatal suffocation causing serious harm);".".
Seanad amendment agreed to.
Seanad amendment No. 32:
Section 58: In page 33, to delete lines 8 to 24.
Seanad amendment agreed to.
Seanad amendment No. 33:
Section 59: In page 33, between lines 24 and 25, to insert the following:
"Amendment of Schedule 3 to Broadcasting Act 2009
59. Schedule 3 to the Broadcasting Act 2009 is amended—
(a) by the insertion of the following paragraph after paragraph 11:
"11A. Online content by which a person without lawful excuse, intentionally or recklessly, causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to suffocation or strangulation, contrary to section 3A(1)(b) of the Non-Fatal Offences against the Person Act 1997.",
(b) by the substitution of the following paragraph for paragraph 13:
“"13. Online content by which a person harasses another contrary to section 10(1), stalks another contrary to section 10(2), or breaches an order made under section 10(4), of the Non-Fatal Offences against the Person Act 1997.",
(c) by the insertion of the following paragraph after paragraph 13:
"13A. Online content by which a person publishes or broadcasts identifying material contrary to section 10A of the Non-Fatal Offences against the Person Act 1997,",
and
(d) by the insertion of the following after paragraph 42:
"Criminal Justice (Miscellaneous Provisions) Act 2023
43. Online content by which a person breaches an order made under section 27 of the Criminal Justice (Miscellaneous Provisions) Act 2023.
44. Online content by which a person publishes or broadcasts identifying material contrary to section 45 of the Criminal Justice (Miscellaneous Provisions) Act 2023.”.”.
Seanad amendment agreed to.
Seanad amendments Nos. 34 and 39 are related and may be discussed together.
Seanad amendment No. 34:
Section 59: In page 33, between lines 24 and 25, to insert the following:
"Amendment of Communications (Retention of Data) Act 2011
60. The Communications (Retention of Data) Act 2011 is amended—
(a) in section 1(1), in paragraph (d) of the definition of "superior officer", by the substitution of "Commission" for "Authority" in each place where it occurs,
(b) in section 3A(8), by the substitution of "Schedule 2" for “Schedule 2 data” in each place where it occurs,
(c) in section 4(1), by the substitution of “retains or preserves” for “retains”,
(d) in section 6—
(i) in subsection (3)(a), by the substitution of “officer” for “member”, and
(ii) in subsection (4)(a), by the substitution of “officer” for “member”,
(e) in section 6B—
(i) in subsection (9), by the substitution of “Subject to subsection (15), a superior officer” for “A superior officer”,
(ii) in subsection (10)—
(I) in paragraph (a), by the substitution of “ex parte,” for "ex parte, and”,
(II) in paragraph (b), by the substitution of “issued, and” for “issued.”, and
(III) by the insertion of the following paragraph after paragraph (b):
“(c) be heard otherwise than in public.”,
and
(iii) in subsection(15)(b), by the substitution of “subsection (9)” for “subsection (10)”,
(f) in section 6D—
(i) in subsection (11), by the substitution of “Subject to subsection (17), a
superior officer” for “A superior officer”, and
(ii) in subsection (12)—
(I) in paragraph (a), by the substitution of “ex parte,” for “ex parte, and”,
(II) in paragraph (b), by the substitution of “issued, and” for “issued.”, and
(III) by the insertion of the following paragraph after paragraph (b):
“(c) be heard otherwise than in public.”,
(g) in section 6E(5), by the substitution of “section and section 6F,” for “section,”,
(h) in section 6F(1)—
(i) by the substitution of “Commission” for “Authority”, and
(ii) by the substitution of “disclose to the member or officer concerned Schedule 2 data, internet source data or cell site location data, as the case may be” for “disclose to the member Schedule 2 data or, as the case may be, internet source data”,
(i) in section 7A(7), by the substitution of “officer” for “member”,
(j) in section 7B—
(i) in subsection (5)(b)—
(I) by the substitution, in subparagraph (i), of “unavailable, or” for “unavailable,”,
(II) by the substitution, in subparagraph (ii), of “impeded.” for “impeded, or”, and
(III) by the deletion of subparagraph (iii),
(ii) in subsection (15), by the substitution of “subsection (21)” for “subsection (18)”, and
(iii) in subsection (16)—
(I) by the substitution of “subsection (15)” for “subsection (21)”,
(II) in paragraph (a), by the substitution of “ex parte,” for “ex parte, and”,
(III) in paragraph (b), by the substitution of “made, and” for “made.”, and
(IV) by the insertion of the following paragraph after paragraph (b):
“(c) be heard otherwise than in public.”,
(k) in section 7D—
(i) in subsection (5)(b)—
(I) by the substitution, in subparagraph (i), of “unavailable, or” for
“unavailable,”,
(II) by the substitution, in subparagraph (ii), of “impeded.” for “impeded,
or”, and
(III) by the deletion of subparagraph (iii),
and
(ii) in subsection (16)—
(I) in paragraph (a), by the substitution of “ex parte,” for “ex parte, and”,
(II) in paragraph (b), by the substitution of “made, and” for “made.”, and
(III) by the insertion of the following paragraph after paragraph (b):
“(c) be heard otherwise than in public.”,
(l) in section 9—
(i) in subsection (1), by the substitution of “7C or 7D” for “7C(1) or 7D(1)”,
(ii) in subsection (2), by the substitution of “7C or 7D” for “7C(2) or 7D(2)”,
(iii) in subsection (3), by the substitution of “7C or 7D” for “7C(6) or 7D(6)”,
(iv) in subsection (3A), by the substitution of “7C or 7D” for “7C(7) or 7D(7)”,
and
(v) in subsection (5)(c), by the substitution of “date on which the disclosure
requirement was made” for “disclosure requirement”,
(m) in section 10(10), by the substitution of “the requirement” for “the request”,
(n) in section 12—
(i) in subsection (2)(b), by the substitution of “requirement” for “request”,
(ii) in subsection (3), by the substitution of “the requirement” for “the request”,
and
(iii) in subsection (4), by the substitution of “disclosure requirements” for “disclosure requests”,
(o) in section 12A(1), by the substitution of “section” for “sections”,
(p) in section 12F(2), by the substitution of the following paragraph for paragraph (c):
“(c) the procedures for making a requirement under section 6 or 6F and for making an application under section 6A, 6B, 6C, 6D, 6E, 7A, 7B, 7C or 7D.”,
(q) in section 12G(3)—
(i) by the substitution of the following paragraph for paragraph (b):
“(b) an authorisation issued under section 6B,”,
and
(ii) by the substitution of the following paragraph for paragraph (d):
“(d) a temporary production order made under section 7D(3).”,
(r) in section 12I—
(i) by the substitution of “Commission” for “Authority”, and
(ii) by the deletion of “6E(1),”,
and
(s) in section 12J(2), by the substitution of “section” for “sections”.”.
These amendments correct certain drafting and cross-referencing issues in the Communications (Retention of Data) Act 2011 arising from the amending Act in this area, which was passed last year. I draw attention in particular to the amendments to subsections 77(e), (f), (j) and (k) of the Bill relating to applications to a judge. Under the 2011 Act, as amended, applications for data must be approved by a judge. Applications are made on an ex parte basis, with the relevant agency present, such as An Garda Síochána. They must also be heard in private. This prevents a risk of any person disposing of evidence or otherwise frustrating any evidence.
There are four other sections of the Act that permit a superior officer to sign off an application for data in urgent cases. This would apply if there were immediate risks of data being destroyed or a risk to life, national security or a criminal investigation. The superior officer must apply to a judge within 72 hours of affirmation of an urgent order. The judge reviews the cases and assesses whether the order should have been made. This safeguard is a requirement of the rulings of the Court of Justice of the European Union. The Act currently provides that an application to a judge for affirmation of an urgent order must be made on an ex parte basis but it does not state that the application must be heard in private. The amendments confirm that these applications must be heard in private. They will prevent any risk to the operation of these sensitive data applications and will ensure there are consistent rules throughout the Act for applications to a judge.
Seanad amendment agreed to.
Seanad amendment No. 35:
Section 59: In page 33, between lines 24 and 25, to insert the following:
"Amendment of Schedule to Criminal Procedure Act 2010
61. The Schedule to the Criminal Procedure Act 2010 is amended in paragraph 10 by the insertion of the following subparagraph after subparagraph (a):
"(aa) section 4A (non-fatal strangulation or non-fatal suffocation causing serious harm);".".
Seanad amendment agreed to.
Seanad amendment No. 36:
Section 60: In page 33, between lines 27 and 28, to insert the following:
"Amendment of Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012
60. The Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 is amended—
(a) in Schedule 1, in paragraph 18, by—
(i) the insertion of the following subparagraph after subparagraph (a):
“(aa) section 3A (non-fatal strangulation or non-fatal suffocation),”,
and
(ii) the insertion of the following subparagraph after subparagraph (b):
“(ba) section 4A (non-fatal strangulation or non-fatal suffocation causing serious harm),”,
and
(b) in Schedule 2, by the substitution of the following paragraph for paragraph 11:
"11. An offence under any of the following provisions of the Non-Fatal Offences against the Person Act 1997—
(a) section 3 (assault causing harm),
(b) section 3A (non-fatal strangulation or non-fatal suffocation).”.”.
Seanad amendment agreed to.
Seanad amendment No. 37:
Section 60: In page 33, between lines 27 and 28, to insert the following:
"Amendment of Schedule 1 to Criminal Justice (Forensic Evidence and DNA Database System) Act 2014
61. Schedule 1 to the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 is amended—
(a) by the repeal of paragraph 1(5),
(b) in paragraph 1(7), by the substitution of “human rights, data protection” for “human rights”, and
(c) in paragraph 2(6), by the deletion of “and the person nominated for appointment by the Data Protection Commissioner”.”.
Seanad amendment agreed to.
Seanad amendment No. 38:
Section 62: In page 34, between lines 9 and 10, to insert the following:
"Amendment of section 1 of Criminal Law (Extraterritorial Jurisdiction) Act 2019
62. Section 1 of the Criminal Law (Extraterritorial Jurisdiction) Act 2019 is amended, in paragraph (a) of the definition of “relevant offence”, by—
(a) the insertion of “3A,” after “3,”, and
(b) the insertion of “4A,” after “4,”.”.
Seanad amendment agreed to.
Seanad amendment No. 39:
New section: In page 34, after line 12, to insert the following:
"Provision relating to insertion of sections 6A to 6F of Communications (Retention of Data) Act 2011
63. It is hereby confirmed that, notwithstanding section 6 of the Communications (Retention of Data) (Amendment) Act 2022 (“Act of 2022”), sections 6A to 6F contained in section 6 of the Act of 2022 were, on the date on which section 6 of the Act of 2022 came into operation, inserted into the Communications (Retention of Data) Act 2011 after section 6 of that Act.".
Seanad amendment agreed to.
Seanad amendment No. 40:
New section: In page 34, after line 12, to insert the following:
"Amendment of Schedule 2 to European Union (Passenger Name Record Data) Regulations 2018
64. Schedule 2 to the European Union (Passenger Name Record Data) Regulations 2018 (S.I. No. 177 of 2018) is amended in paragraph 12 by—
(a) the insertion of “3A,” after “3,”, and
(b) the insertion of “4A,” after “4,”.”.
Seanad amendment agreed to.
Seanad amendments reported.
A message will be sent to Seanad Éireann acquainting it that Dáil Éireann has agreed to all the amendments made by Seanad Éireann to the Criminal Justice (Miscellaneous Provisions) Bill 2022.