S.I. No. 412/2003 - District Court (Theft and Fraud Offences) Rules 2003

The District Court Rules Committee, in exercise of the powers conferred on them by section 91 of the Courts of Justice Act, 1924 , section 72 of the Courts of Justice Act, 1936 section 17 of the Interpretation Act, 1937 [as applied by section 48 of the Courts (Supplemental Provisions) Act, 1961 ] and section 34 of the Courts (Supplemental Provisions) Act, 1961 , do hereby, with the concurrence of the Minister for Justice, Equality and Law Reform, make the following rules of court:-

1.         These rules may be cited as the District Court (Theft and Fraud Offences) Rules 2003.

2.         Save as hereinafter provided, these rules shall come into operation on the 9th Day of October, 2003 and shall be read together with all other District Court Rules for the time being in force.

3.         (1)       The District Court Rules, 1997 ( S.I. No. 93 of 1997 ) shall be amended:

 (i)       by the substitution for rule 1 of Order 34 of the following:

“-Under the Criminal Justice (Theft and Fraud Offences) Act, 2001 (No. 50 of 2001)

1(1) An application grounded upon the evidence on oath of a member of the Garda Síochána for a warrant under section 48 (2) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 may be made to the District Court Judge for the District Court District wherein the place in respect of which the warrant is sought is situated. A warrant under section 48(2) of the said Act of 2001 which is granted on foot of such information shall be in the Form 34.1 Schedule B.

(2) An application by a member of the Garda Síochána for an order under section 50(2) of the said Act of 2001 for the forfeiture and subsequent disposal of any thing set out in section 50(1) of the said Act of 2001 may be made to the Judge of the District Court for the time being assigned to the District Court District in which the thing was seized and shall be preceded by the issue and service of a notice of application in the Form 34.2A, Schedule B upon (i) the relevant District Court Clerk (ii) the person, if any is identifiable, from whose possession the thing was seized and (iii) any person who has claimed to the applicant to be the owner of or otherwise interested in the thing. An order under section 50(2) of the Act of 2001 shall be in the Form 34.2B, Schedule B.

(3) An application grounded upon the sworn evidence of a member of the Garda Síochána for an order under section 52(2) of the said Act of 2001 for an order that a person produce material to a member of the Garda Síochána for the member to take away or give such a member access to it for the purposes specified in section 52 of the said Act of 2001 may be made to the District Court Judge for the District Court District in which the person in respect of whom such order is sought resides or carries on any trade or business. An order made under section 52(2) of the Act of 2001 shall be in the Form 34.2C Schedule B”.

4        The Forms numbered 34.1 and 34.2 in Schedule B of the District Court Rules, 1997 ( S.I. No. 93 of 1997 ) shall be deleted and the Forms numbered 34.1 to 34.2C inclusive in Schedule 1 hereof shall be added to the Forms in Schedule B of the District Court Rules, 1997 ( S.I. No. 93 of 1997 ) in substitution therefor.

5        These Rules shall not apply to any proceeding or application in respect of an offence alleged to have been wholly or partly committed before 9th October, 2003.

Schedule 1

No. 34.1

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT, 2001, Section 48

WARRANT

WHEREAS from the evidence on oath given before me a Judge of the District Court pursuant to section 48 of the above mentioned Act on this day, by............................................................ ..................... of............................................................ ............................................................ ................................... a member of the Garda Síochána

I AM SATISFIED THAT there are reasonable grounds for suspecting that evidence of, or relating to the commission of, an offence referred to in section 48 (1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 , to wit, the offence of ............................................................  is to be found at a place namely ............................................................ ............................................................  in the court (area and) district aforesaid.

I HEREBY GRANT pursuant to section 48 of the said Act this warrant authorising

..............................,

of ............................................................ ............................................................ ................................. a member of the Garda Síochána, alone or accompanied by such other persons as (s)he considers necessary

TO ENTER, within 7 days from the date hereof (if necessary by the use of reasonable force) the above - mentioned place;

TO SEARCH the above-mentioned place and any persons found there;

To EXAMINE, SEIZE and RETAIN any thing found there, or in the possession of any person present there at the time of the search of said place, which (s)he reasonably believes to be evidence of, or relating to the commission of an offence to which section 48 of the said Act applies (including, without limitation:

-         to make and retain a copy of any document or record;

-         where necessary, to seize and, for as long as necessary, retain any computer or other storage medium in which any record is kept;

-         to operate, or cause to be operated by a person accompanying him/her for that purpose, any computer;

-         to require any person at the said place who appears to have lawful access to any such computer:

-           to give him/her any password necessary to operate it,

-           otherwise to enable him/her to examine the information accessible on any such computer in a form in which such information is visible and legible or,

-           to produce any such information in a form in which it can be removed and in which it is or can be made visible and legible) and

TO TAKE any other steps which appear to him/her to be necessary for preserving any such thing and preventing interference with it.

 Dated this                  day of                     20

To the Superintendent of the Garda Síochána:

At .........................................................]

Schedule 1

No. 34.2A

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT, 2001, Section 50

NOTICE OF APPLICATION FOR FORFEITURE/DISPOSAL

[A.B,

............................................................ ............................................................ ................................

Prosecutor

C.D,

............................................................ ............................................................ ................................

Accused]

WHEREAS                                                            [a]                                                           thing[s],

namely ............................................................ ...................................................

............................................................ ................ has/have been seized by me, a member of the Garda Síochána and whereas I suspect such thing[s] to be [a] thing[s] of a kind described in section 50(1)(a) to section 50(1)(e) of the above-named Act of 2001, to wit, .......................................

TAKE NOTICE that I will apply at the sitting of the District Court to be held at ............................................. on the day of ................................ at ............................... am/pm for an order that the said thing[s] be forfeited and destroyed or disposed of.

[If you wish to oppose the said application, you should attend at the said sitting and show cause why such order should not be made.]

Dated this                  day of                        20

To:                The Clerk of the District Court

At:

And to:          [ ].

Schedule 1

No. 34.2B

Criminal Justice (Theft and Fraud Offences) Act, 2001, Section 50

ORDER FOR FORFEITURE/DISPOSAL

[A.B,

............................................................ ............................................................ ................................

Prosecutor

C.D,

............................................................ ............................................................ ................................

Accused]

WHEREAS on the application of Garda                                                                made under section 50(2) of the aforesaid Act of 2001 in respect of [a] thing[s] seized by Garda ......................................... namely ............................................................ ...............................

AND HAVING HEARD said applicant and ^* all/^* no persons appearing before the Court claiming to be the owner of or otherwise interested in the thing.

AND BEING SATISFIED that the thing[s] is/are [a] thing[s] to which section 50 of the said Act of 2001 applies and that it is in the public interest to do so

IT IS HEREBY ORDERED that the said thing[s] be forfeited and

^* delivered to [and destroyed by and under the supervision of the Superintendent of the Garda Síochána at............................................................ ..]

THIS ORDER shall not take effect before the expiry of the time within notice of appeal herefrom may be given by any person and, if any such appeal is taken, before the determination of any such appeal.

Dated this                  day of                     20

Schedule 1

No. 34.2C

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT, 2001, Section 52

ORDER

WHEREAS from the evidence on oath given before me a Judge of the District Court on this day, by ..................................................

of ............................................................ ............................................................ ................................ a member of the Garda Síochána, I AM SATISFIED THAT

the Garda Síochána are investigating an offence to which section 52 of the above-named Act applies.

.............................. of ............................................................ ... in the court (area and) district aforesaid has possession or control of particular material, or material of a particular description namely ............................................................ .......................................................

And that there are reasonable grounds for suspecting that the said material constitutes evidence of or relating to the commission of the offence.

IT IS HEREBY ORDERED that the said ....................................... of .............................. ........................................ in the court (area and) district aforesaid

^* [produce (where necessary, in a visible and legible form) the said material, being ........... ............................................................ ..................... to the said ........................................., a member of the Garda Síochána (or to any member of the Garda Síochána) for such member to take away] or

^* [give access (where necessary, in a visible and legible form) to the said material, being ............. ............................................................ .... to the said ......................................... a member of the Garda Síochána (or to any member of the Garda Síochána)]

^* immediately upon production of this order to him/her^* within .................................. days of the service of this order upon him/her

 Dated this                  day of                         20

To the Superintendent of the Garda Síochána: ............................................................ ..........................

At

And to the said:

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

These Rules amend rule 1 of Order 34 with the substitution of wording contained hereof. Forms numbered 34.1 and 34.2 in Schedule B of the District Court Rules, 1997 ( S.I. No. 93 of 1997 ) shall be deleted and the Forms numbered 34.1 to 34.2C inclusive in Schedule 1 hereof shall be added to the Forms in Schedule B of the District Court Rules, 1997 ( S.I. No. 93 of 1997 ) in substitution therefor. These Rules shall not apply to any proceedings or application in respect of an offence alleged to have been wholly or partly committed before 9th October, 2003

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