Criminal Justice (Miscellaneous Provisions) Bill 2022: Report and Final Stages
I welcome the Minister, Deputy McEntee, back to the House. She was here only yesterday.
Recommittal will be necessary in respect of amendments Nos. 1, 2, 7, 12 and 20. I ask Members to note that by agreeing to the motion to recommit, the House will allow a Committee Stage-style discussion on those amendments and, therefore, they may speak more than once on each of these amendments. In respect of other amendments, I remind them that they may speak only once on Report Stage, except for the proposer of an amendment, who may reply to the discussion on the amendment. On Report Stage, each non-Government amendment must be seconded. There is only one non-Government amendment.
Bill recommitted in respect of amendments Nos. 1 and 2.
Amendments Nos. 1, 2, 12 and 20 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 1:
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”.
As this is a new amendment, it is important to lay out what we are doing here. In essence, these amendments will provide a mechanism for Ireland's co-operation with the European Public Prosecutor's Office, EPPO, an independent EU body established in 2017 as an enhanced co-operation measure. It has responsibility for investigating and prosecuting crimes against the financial interests of the EU and participating member states. It commenced its operations in 2021.
The development of a supranational body with responsibility for both the investigation and prosecution of offences presented particular challenges in the context of Ireland's common law legal system, and Ireland initially decided not to opt in. This decision is under review and how we could opt in is being actively considered. In the interim, however, we have been clear that we fully support and wish to co-operate with EPPO. We have been working closely with participating member states and EPPO to see how this can be achieved.
Establishing a sound legal basis for co-operation is not straightforward. The relevant international co-operation instruments are established on the basis of state-to-state requests and were not created with a supranational body such as EPPO in mind. This issue was identified early in the development of EPPO and Ireland argued for the development of a separate EU legal instrument to facilitate co-operation. In fact, such a new instrument was foreseen by the EPPO regulation, which invites the Commission, if appropriate, to submit proposals in respect of it. To date, however, no such instrument has been progressed. In the absence of such an instrument, Ireland has sought to be pragmatic and has emphasised that it can respond to requests for co-operation if those requests are made through the participating member state authorities.
However, to allow requests to be made directly by EPPO, legislative changes are required and these are the changes I am bringing forward today. Given the difficulties arising from using existing international agreements, the Office of the Attorney General has advised that the only sound approach to co-operation with EPPO is to unilaterally provide for that assistance in domestic law.
Accordingly, the approach taken is to amend the Criminal Justice (Mutual Assistance) Act 2008 with a new Part 7B to be inserted into that Act. This makes general provision for co-operation with EPPO and specifies section by section the modifications that apply when dealing with EPPO requests. Requests from EPPO will generally be dealt with in a similar way to requests by EU member states. When it is necessary to determine any question by reference to the law of the requesting state, this will be done by reference to the law of the member state where EPPO is conducting the investigation. There are particular cases where specific provision must be made, for example, around the documentation to be provided for external freezing orders or for assurances to be given with regard to the law of the relevant EPPO member state. A regulation-making power is provided to enable specific details to be addressed with regard to particular types of requests.
In general, Ireland will rely on EPPO acting within its competencies. Ireland will not look behind a request to determine, for example, whether it is EPPO or the member state authorities in question that should be investigating the offence in question. The EPPO regulation provides that such matters will be dealt with by the authorities of the other member states or in the Court of Justice of the EU as it may be. While the amendments are complex and a significant amount of work has gone into this, for which I thank my officials, this reflects the application of the approach I have outlined to the many different types of requests that may arise.
With regard to the investigation and the court, where does jurisdiction lie with regard to the likes of EU countries and countries outside the EU such as the UK? Can the people who are being investigated or brought to court move jurisdiction to another state outside the EU such as the UK and look for his or her case to be moved to that state if he or she is being prosecuted in an EU state? Can a person from the UK who is being prosecuted in an EU state move the case to his or her own jurisdiction, which is the UK?
Where EPPO undertakes the investigations, it is specific to member states that are signed up. We have not signed up officially but we are putting in place a mechanism to allow for that exchange of information. The UK has engaged with and is working to ensure that there is no loss of ability to exchange information now it is outside the EU. Depending on where the incident happens or the case is taken, that is where the case will be heard. For example, there are a number of cases at the moment, one of which is in Italy. That case is being heard in Italy because that is where the crime was committed so that is what we are generally talking about here. The case will be taken wherever the crime took place but where there is a need to engage with other relevant authorities, this simply allows through the public prosecutor's office that information and that exchange to take place on a sound legal footing or a legal footing as they are requiring. Beyond that, when it comes to the UK, as is the case with a lot of different justice strands, engagement was happening with the EU to make sure that where possible, there can be that close alignment and co-operation when it comes to criminal justice matters.
Amendment agreed to.
Government amendment No. 2:
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.”.
Amendment agreed to.
Bill reported with amendments.
I move amendment No. 3:
In page 16, between lines 17 and 18, to insert the following:
“Amendment of Act of 1997
23. The Act of 1997 is amended by the insertion of the following section after section 9:
“Non-intimate partner coercive control
9A. (1) A person commits an offence where he or she knowingly and persistently engages in a course of conduct that consists of abusive behaviour that—
(a) is controlling or coercive,
(b) has a serious effect on a relevant person, and
(c) a reasonable person would consider likely to have a serious effect on a relevant person.
(2) For the purposes of subsection (1), a person’s behaviour has a serious effect on a relevant person if the behaviour causes the relevant person—
(a) to fear that violence will be used against him or her or another person, or
(b) serious alarm or distress that has a substantial adverse impact on the capacity of the relevant person to engage in some or all of the relevant person’s usual day-to-day activities.
(3) Abusive behaviour for the purposes of this section includes engaging in or threatening to engage in the following:
(a) behaviour that deprives the relevant person of liberty, restricts the relevant person’s liberty or otherwise unreasonably controls, regulates or monitors the relevant person’s day-to-day activities,
communications or movements, whether by physically following the relevant person, using technology or in another way;
(b) undermining of the relevant person’s independence;
(c) imposing or making decisions on behalf of the relevant person without his or her consent or without the legal authority to do so;
(d) behaviour that is degrading, frightening, humiliating, punishing or shaming;
(e) behaviour that is intimidation;
(f) behaviour that is verbally abusive;
(g) behaviour that isolates the relevant person and preventing contact with family and friends and other supports;
(h) behaviour that causes harm to the relevant person, or to another person, if the relevant person fails to comply with demands made of the relevant person;
(i) behaviour that damages or destroys property;
(j) behaviour that is economically or financially abusive.
(4) A person who commits an offence under subsection (1) is liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both.
(5) In this section, a person is a ‘relevant person’ in respect of another person if he or she is the subject of abusive behaviour.”.”.
This amendment seeks to insert a new offence in the Non-Fatal Offences Against the Person Act 1997 modelled on the existing coercive control offence in the Domestic Violence Act 2018. However, this new offence would apply to everyone - not just intimate partners. People working with people at risk of abuse, coercion and exploitation understand that coercive control does not just happen in intimate relationships. I know the Minister understands this and I appreciate her considered response to me on Committee Stage and for meeting with me on this issue. She expressed her view that the issue needs to be addressed but stated that more work needs to be done to define a new offence and not just extend the existing offence. I understand all that and that the Minister is very cautious on this issue but I must talk about the fact that those who are campaigning on the issue, particularly with regard to adult safeguarding, have reason to be sceptical of caution and delay from Government figures. My Civil Engagement Group colleague former Senator Colette Kelleher introduced a comprehensive adult safeguarding Bill way back in 2017 that was shelved due to an over-abundance of caution and that is the concern here. The Government promised its own version and six years on, we have yet to see it. In the meantime, many people have been harmed. Some of the stories have been horrific. They have had their dignity and autonomy violated by bad actors who could have been stopped by adult safeguarding legislation.
This is a dual issue. On the civil side, we need comprehensive adult safeguarding legislation to create systems that protect people from being made vulnerable while on the criminal side, we need an offence that adequately captures the coercion and control to which people are made subject by abusers who are not intimate partners. Delay can create harm. I am worried about that so with that in mind, I think the best way to mitigate that harm is for the Minister to accept this amendment and to pass and enact Senator Kelleher's Bill. If this is not considered possible, organisations campaigning on the issue of adult safeguarding like Safeguarding Ireland, Sage Advocacy and the Irish Association of Social Workers deserve a clear and firm timetable for when these legislative changes will be introduced in Government legislation. That is my ask today. I ask the Minister to meet with those organisations and to move more quickly than has been the case. I know this is something the Minister is willing to do, which I am really happy to hear. These organisations have been fighting very hard and people have been waiting too long to be continually left in the dark. I thank the Minister for her consideration. I appreciate it.
I thank the Senator for her contribution and what she is trying to address here. I have met with Safeguarding Ireland and I understand that there are a lot of vulnerable people who need further protection in two ways - looking at it from a criminal justice side and making sure all the right rules, regulation and oversight are in place where you have vulnerable people. It is not just in certain settings. It can also extend to the home where you might have a parent-child relationship or vulnerable people interacting with other adults.
The coercive control legislation was brought in in recent years and was very specific to that intimate partner relationship. A lot of work was done with An Garda Síochána, victims and others to make sure that, as was set out, it was clear and it worked. The fact that we are starting to see convictions is very positive and, hopefully, will encourage more people to come forward. I agree fully with the Senator that coercive control does not just apply to those in partner relationships be they married couples or partners. It can and does happen beyond that.
While I cannot accept the amendment today because I believe we need further engagement with An Garda Síochána, the DPP and other organisations that work in this space, including Safeguarding Ireland, what I can commit to is that we will start that process - engaging with An Garda Síochána first, looking at the work that has been done because a huge amount of work has been done through Safeguarding Ireland and others and seeing how we can progress this and where there are gaps because some of the behaviours mentioned in the amendment are already covered in what we are doing here for harassment and stalking. I thank the Senator for her amendment and look forward to working with her on this over the next few months.
I accept why the Minister cannot accept this amendment today and I look forward to working with her along with Safeguarding Ireland and other organisations.
The only thing I ask is time. We really need to do it sooner rather than later, and I do not want it to be delayed like the adult safeguarding legislation has been delayed. There are huge concerns and more and more people are being hurt, damaged and violated. It has been a nightmare, particularly for Safeguarding Ireland, which is working on those issues. I accept the point made today and I thank the Minister.
Amendment, by leave, withdrawn.
Amendments Nos. 4 and 6 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 4:
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).”.
When a person is convicted of stalking or harassment offences, essentially, the court will have the power to make a no-contact order prohibiting any type of communication or that person going within a certain distance of the other person's residence, education or employment, and if that person is in breach of such an order, it is a very serious offence. What these amendments do is complement that provision and ensure such orders are properly notified. It means that when this order is made, it is notified in writing to the relevant parties, which includes the victim and local gardaí, and this obviously helps with the enforcement but it also makes it much clearer when there is a potential breach in regard to a prosecution.
I know this is an issue that has been raised by victims. I acknowledge Eve McDowell and Una Ring, who are in the Visitors Gallery today, and who have campaigned for this but, more broadly, for the introduction of the standalone stalking offence. It is important when we are doing this that we cover all bases and that, where possible, all scenarios are covered to ensure that when a non-contact order is put in place, everybody who should know is aware of that and it is made readily available in the first instance. That is what this amendment will do.
I also want to acknowledge Eve McDowell and Una Ring for the work they have done as campaigners, working with myself and others, including the Minister, Deputy McEntee, for most of the last two years. It has been a long road but we are nearly there. We had thought the Bill might conclude today but these amendments are there to enhance the legislation. As we have heard from the Minister, the intention behind the amendments is to strengthen the Bill, putting victims at the centre and making sure that we give as much protection as possible to other people who might find themselves in a similar situation to Una and Eve. It is very welcome.
It is not very often that citizens get an opportunity to change the law. As politicians, we ourselves find it difficult to make changes to legislation, but it is rare that citizens through their own campaigning bring about a change to legislation, which is what Una and Eve will achieve when this Bill passes all stages in both Houses, and it will go back to the Dáil next week. I take this opportunity to thank both women and their families for the work they have done, and they are joined in the Visitors Gallery today by their supporters and family. I know that since bringing this issue to light almost two years ago, they have become a point or a source of information and support for other victims and they are consistently having contact with and taking phone calls and emails from other victims who are trying to navigate what is a complicated and complex system. They can both be very proud of what they have achieved. It has been an honour and a privilege to work with both of them in getting us to where we are today, with the Minister as well. We are fortunate to have a female Minister for Justice who understands these issues and who has made sure that women's safety is top of the agenda in the Department of Justice. It has been a team effort but, ultimately, it has been down to the work of both Eve and Una. I thank them for that.
Thank you. We are doing our best to get through the Bill as fast as we can in order to get it back to the Dáil Éireann next week and to get it passed fully.
Amendment agreed to.
Amendments Nos. 5, 11, 21 and 22 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 5:
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.”.”.
This amendment provides for restrictions on the publication of the identity of alleged victims of harassment and stalking offences under section 10 of the Non-Fatal Offences Against the Person Act 1997. It provides that it is an offence to publish or broadcast information, photographs, depictions or representations of physical likeness that are likely to lead to the identification of the alleged victim. Harassment and stalking offences tend to involve a serious invasion of a victim's privacy. There is a high risk that publication of the victim's identity may subject them to further distress, as well as secondary or repeat victimisation. This provision on the restriction of identification will, therefore, be an important element of victim protection in these types of cases. The restrictions provided may be waived by the alleged victim, of course, or may be disapplied by the courts where they feel it is appropriate.
Amendment No. 11 introduces a similar provision for cases involving the breach of a civil order under section 27. The provision places restrictions on the publication of the identity of both the complainant and the defendant in such cases. 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 victim or the person charged. Again, breaches of section 27 orders tend to involve a very serious invasion of a victim's privacy and there is a high risk that publication may subject them to further distress, trauma or victimisation. This provision represents a very important safeguard for victims overall and, in most of what is in this legislation, that is what we are trying to achieve.
Amendments Nos. 21 and 22 provide for consequential amendments to the Broadcasting Act and other media regulation Acts arising from these new anonymity provisions in regard to harassment and stalking offences and breaches of civil orders. They follow the pattern in the Act of scheduling matters that might be subject to regulation of online media. The effect of these provisions will be to allow the Online Safety Commissioner, working under Coimisiún na Meán, to develop online safety codes which will require certain online platforms to minimise at a systemic level the availability of online content by which a person breaches the new anonymity provisions. These codes may also set out standards that an online platform must follow in regard to user complaints relating to this type of content. Basically, as we move to update our laws, we need to make sure that we apply this to all technology that is available to people where they can use this as a further form of abuse.
Amendment agreed to.
Government amendment No. 6:
In page 18, line 31, to delete “section,” and substitute “section (other than subsections (5) to (7)),”.
Amendment agreed to.
Government amendment No. 7:
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.”.
This is a transitional provision to ensure certificates signed prior to the changes made to section 25 of the 1997 Act when coming into effect will remain valid and will not be affected.
Amendment agreed to.
Amendments Nos. 8 to 10, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 8:
In page 20, line 13, to delete “An application” and substitute “Subject to subsection (7), an application”.
These amendments provide for the making of civil restraining orders under section 20 on an urgent basis.
As Senators pointed out on Committee Stage, an immediate risk may exist to a person from stalking behaviour and delays may arise placing a person on notice. The amendments provide for an application for an order to be made ex parte and for the grant of an ex parte application where there are reasonable grounds to believe there was 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 for protection to be put in place immediately while placing the respondent on notice. The orders will also be available where an application is made on notice but is not immediately determined. This essentially allows the court to make a temporary order pending the determination of the overall application.
Taken together, what we want to ensure is that there is urgent relief available where victims need immediate relief and, obviously, we need to ensure that we safeguard them from any type of ongoing offending behaviour as they await a final determination of their section 27 application. Again, this is to make sure there is absolutely no gap where somebody needs that immediate assistance and help. I believe this ensures that.
Amendment agreed to.
Government amendment No. 9:
In page 20, line 33, to delete “An order” and substitute “Subject to subsections (9) and (13), an order”.
Amendment agreed to.
Government amendment No. 10:
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.”.
Amendment agreed to.
Government amendment No. 11:
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.”.
Amendment agreed to.
Government amendment No. 12:
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 (Deputy 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.”.”.
Amendment agreed to.
Amendments Nos. 13 to 16, inclusive, 18, 19 and 27 to 30, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 13:
In page 29, after line 35, to insert the following:
“Amendment of Schedule to
Criminal Law (Jurisdiction) Act 1976
50. The Schedule to the Criminal Law (Jurisdiction): Act 1976 is amended, in paragraph 7, by the insertion of the following subparagraph after subparagraph (a):
“(aa) section 4A (non-fatal strangulation or non-fatal suffocation causing serious harm)”.”.
These amendments are technical. They provide for consequential changes to a number of other enactments arising from the new section 3A, covering non-fatal strangulation or non-fatal suffocation offences, and section 4A, which covers non-fatal strangulation or non-fatal suffocation causing serious harm offences. The effect of these is essentially to extend existing provisions, which are currently applicable to the existing section 3, that is, assault causing harm offences, and section 4, that is, assault causing serious harm offences.
They will now also cover sections 3A and 4A.
Amendment agreed to.
I welcome Deputy Grealish and his group of visitors to the Public Gallery. I hope they all have a lovely day in Leinster House. It is nice to see the Deputy in the Upper House.
Government amendment No. 14:
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);”.”.
Amendment agreed to.
Government amendment No. 15:
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);”.”.
Amendment agreed to.
Government amendment No. 16:
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);”.”.
Amendment agreed to.
Government amendment No. 17:
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 is a quasi-judicial body responsible for the review of the detention of patients in the Central Mental Hospital. Currently, Schedule 1(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 solicitor or be a judge or former judge. Should the chairperson be incapacitated or unavailable, there is currently no means to provide for a substitute. This presents a risk, given the strict time limits available for such reviews.
The amendment will establish a deputy chairperson role on 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 that are due to take place will still be able to do so even if the chairperson is unavailable. Should it arise that both the chair and the deputy chair are unavailable, the Minister may appoint a suitably qualified individual to act on a temporary basis. An amendment to this effect to Schedule 1 of the Act has been introduced already.
Amendment agreed to.
Government amendment No. 18:
In page 32, to delete lines 34 and 35, and in page 33, to delete lines 1 to 5 and substitute the following:
“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)”:
Amendment agreed to.
Government amendment No. 19:
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);”.”.
Amendment agreed to.
Bill recommitted in respect of amendment No. 20.
Government amendment No. 20:
In page 33, to delete lines 8 to 24.
Amendment agreed to.
Bill reported with amendment.
Government amendment No. 21:
In page 33, between lines 24 and 25, to insert the following after paragraph (b):
“(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,”.”.
Amendment agreed to.
Government amendment No. 22:
In page 33, between lines 24 and 25, to delete paragraph (c) and substitute the following:
“(c) 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.”.”.
Amendment agreed to.
Amendments Nos. 23 to 26, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 23:
In page 33, between lines 24 and 25, to insert the following:
“(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.”,”.
This is the final group of amendments. They are amendments to the Communication (Retention of Data) Act 2011 to correct drafting and cross-referencing issues in the amending Act that was passed last year. Under the 2022 Act, applications for data must be approved by a judge. They are made on an ex parte basis with the relevant agency present, for example, An Garda Síochána. They must be also heard otherwise than in public - essentially, in private. This prevents a risk of any persons disposing of evidence or otherwise frustrating any investigation.
There are four other sections of the Act that permit a superior officer to sign off on applications for data in urgent cases. This would apply if there were immediate risks of data being destroyed or a risk to life, to national security or to a criminal investigation in general. A superior officer must apply to a judge within 72 hours for affirmation of an urgent order. The judge reviews the case and assesses whether the order should have been made. This safeguard is a requirement of the European Court of Justice rulings.
Currently, the Act provides that an application to a judge for affirmation of an urgent order must be on an ex parte basis, but it does not state that the application must be heard in private. The amendment confirms that these applications must be heard in private. They will prevent any risk to the operation of these sensitive data applications and will ensure that there are consistent rules across the Act for applications to judges.
Amendment agreed to.
Government amendment No. 24:
In page 33, between lines 24 and 25, to delete paragraph (f) and substitute the following:
“(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.”,”.
Amendment agreed to.
Government amendment No. 25:
In page 33, between lines 24 and 25, to delete paragraph (j)(iii) and substitute the following:
(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.”,”.
Amendment agreed to.
Government amendment No. 26:
In page 33, between lines 24 and 25, to delete paragraph (k) and substitute the following:
“(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.”,”.
Amendment agreed to.
Government amendment No. 27:
In page 33, between lines 24 and 25, to insert the following:
“Amendment of Schedule to Criminal Procedure Act 2010
59. 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);”.”.
Amendment agreed to.
Government amendment No. 28:
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
59. 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).”.”.
Amendment agreed to.
Government amendment No. 29:
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,”.”.
Amendment agreed to.
Government amendment No. 30:
In page 34, after line 12, to insert the following:
“Amendment of Schedule 2 to European Union (Passenger Name Record Data) Regulations 2018
63. 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,”.”.
Amendment agreed to.
Pursuant to Standing Order 154, it is reported to the Seanad that the committee to which amendments Nos. 1, 2, 12 and 20 were recommitted has amended the Title of the Bill.
Bill, as amended, received for final consideration.
When is it proposed to take the next Stage?
Question proposed: "That the Bill do now pass."
I thank the Minister for her co-operation and help with this Bill.
Question put and agreed to.
Cuireadh an Seanad ar fionraí ar 12.46p.m. agus cuireadh tús leis arís ar 2.04 p.m.
Sitting suspended at 12.46 p.m. and resumed at 2.04 p.m.
