S.I. No. 47/2006 - District Court (Criminal Justice Act 1994, Section 38) Rules 2006

SI No.47 of 2006

District Court (Criminal Justice Act 1994, section 38) Rules 2006

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 (Criminal Justice Act 1994, section 38) Rules 2006.

2. These rules shall come into operation on the 24^th day of February 2006 and shall be read together with all other District Court rules for the time being in force.

3. The District Court Rules 1997 ( S.I. No. 93 of 1997 ) shall be amended by the substitution for rules 4 to 8 inclusive of Order 38 of the following:

“Detention of Cash under section 38 of the Criminal Justice Act 1994 (as amended)

4. In rules 5 to 8 inclusive following, “the Act” means the Criminal Justice Act 1994 , as amended by section 20 of the Proceeds of Crime (Amendment) Act 2005 .

5.(1) An application to the Court by a member of the Garda Síochána or an officer of Customs and Excise under sub-section (2) of section 38 of the Act for an order authorising the detention beyond forty-eight hours of cash seized by virtue of section 38 of the Act shall be made by the information on oath and in writing of the applicant, in the Form 38.4, Schedule B. Such application shall be made to a Judge of the District Court assigned to the District Court district wherein the cash was seized. Where the Judge is satisfied that the urgency of the case so requires, such application may be heard and determined on the evidence viva voce and on oath of the applicant. In such case, a written note of the evidence given shall be prepared by the applicant and signed by the Judge.

(2) An order of the Court made on such application authorising the detention beyond forty-eight hours of cash seized by virtue of section 38 shall be in the Form 38.5, Schedule B. The applicant shall cause a copy of the said order to be served upon the person from whom the cash was being seized and upon any person by or on whose behalf the cash was being imported or exported.

6.(1) An application to the Court by a member of the Garda Síochána or an officer of Customs and Excise under sub-section (3) of section 38 of the Act for an order authorising the further detention in accordance with sub-section (3) of section 38 of the Act of cash seized by virtue of section 38 of the Act shall be made to a Judge of the District Court assigned to the District Court district in which the cash was seized. Such application shall be preceded by the issue, and service upon the person from whom the cash was seized and upon any other person directly affected by the order previously made under sub-section (2) of section 38 in respect of the cash, of copy of a notice of application, in the Form 38.6, Schedule B.

(2) Notice of such application shall be served at least seven days before the date fixed for the hearing of the application. Such notice may be served in the manner provided by Order 10 of these Rules. The original notice of application together with a statutory declaration as to the service of copy of such notice shall be lodged with the Clerk at least forty eight hours before the date of the hearing.

(3) An order of the Court granting the application shall be in the Form 38.7, Schedule B. The applicant shall cause a copy of any such order to be served upon the person from whom the cash was seized and upon any person by or on whose behalf the cash was being imported or exported.

7.(1) An application to the Court under sub-section (5) of section 38 of the Act for an order releasing cash seized by virtue of section 38 of the Act shall be made to a Judge of the District Court assigned to the District Court district in which the cash was seized. Such application shall be preceded by the issue, and service upon the member(s) of the Garda Síochána or officer(s) of Customs and Excise who applied for any order previously made under sub-section (2) or sub-section (3) of section 38 of the Act in respect of the cash, of copy of a notice of application, in the Form 38.8, Schedule B.

(2) Notice of such application shall be served at least seven days before the date fixed for the hearing of the application. Such notice may be served in the manner provided by Order 10 of these Rules. The original notice of application shall be lodged with the Clerk at least forty eight hours before the date of hearing.

(3) The order of the Court on the application shall be in the Form 38.9, Schedule B.

8.(1) Applications to the Court under the Act may be brought, heard and determined before a Judge of the District Court assigned to the District Court district wherein the cash was seized at any sitting of the Court within such Judge's district.

(2) Where it seems appropriate to the Court to so direct, in any application under sub-section (3) or sub-section (5) of section 38 of the Act, the Court may direct that any person who had not been given notice of the application be joined in, or put on notice of, the application.”

4. The Forms in the Schedule hereto shall be added to the Forms in Schedule B to the District Court Rules 1997 ( S.I. No. 93 of 1997 ), in substitution for the Forms numbered 38.4 to 38.9 inclusive in the said Schedule C

SCHEDULE

38.4

SCHEDULE B

O.38, r. 5(1)

Criminal Justice Act 1994, Section 38 (as amended by Section 20, Proceeds of Crime (Amendment) Act 2005)

INFORMATION

District Court Area of

District No.

THE INFORMATION of ....................................................................

of ................................................................................................

^* a member of the Garda Síochána ^* an officer of Customs and Excise

Who says on oath that-

On the ...... day of ............. 200...at..... o'clock at................................................in the court (area and) district aforesaid, I seized and detained in accordance with Section 38 of the Criminal Justice Act 1994 , as amended by Section 20 of the Proceeds of Crime (Amendment) Act 2005 from one............................... cash in the amount of approximately ........................... (being an amount not less than the sum prescribed by the Minister for Justice, Equality and Law Reform, for the purposes of the said Act, as the prescribed sum) which said cash was being ^* exported from/^* imported into the State.

I had at the time of such seizure and detention and have now reasonable grounds for suspecting that:

^* the said ............................ was importing or exporting or intended to or was about to import or export the said cash and

^* the said cash directly or indirectly represented the proceeds of crime

^* the said cash was intended by ................................for use in connection with criminal conduct.

The basis for my so suspecting is as follows:

I believe that the continued detention of the said cash beyond forty eight hours from its seizure and detention is justified

^* while its origin or derivation is further investigated

^* while consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

The basis for my belief is as follows:

And I hereby apply for an order authorising the detention of the said cash for the period of ..........(being a period not exceeding three months) until the .......... day of ................ 200...

Signed ............................................

Informant

SWORN before me this day of 20

Signed ............................................

Judge of the District Court

38.5

SCHEDULE B

O.38, r. 5(2)

Criminal Justice Act 1994, Section 38 (as amended by Section 20, Proceeds of Crime (Amendment) Act 2005)

ORDER AUTHORISING DETENTION OF CASH BEYOND FORTY EIGHT HOURS

District Court Area of

District No.

WHEREAS from the application by information on oath and in writing under section 38(2) of the above-mentioned Act of 1994 (as amended) sworn before me on this day, by ......................................... of................................................

^* a member of the Garda Síochána ^* an officer of Customs and Excise

I AM SATISFIED THAT

On the ...... day of ............ 200...at ..... o'clock at.................................................in the court (area and) district aforesaid, in accordance with Section 38 of the Criminal Justice Act 1994 , as amended by Section 20 of the Proceeds of Crime (Amendment) Act 2005 , the said applicant seized and detained from one ............................... cash in the amount of .............................. (being an amount not less than the sum prescribed by the Minister for Justice, Equality and Law-Reform, for the purposes of the said Act, as the prescribed sum).

The said applicant had at the time of such seizure and detention and has reasonable grounds for suspecting that:

^* the said .............................. was importing or exporting or intended to or was about to import or export the said cash and

^* the said cash directly or indirectly represented the proceeds of crime

^* the said cash was intended by ................................. for use in connection with criminal conduct.

The continued detention of the said cash beyond forty eight hours from its seizure and detention is justified

^* while its origin or derivation is further investigated

^* while consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

IT IS ORDERED that the detention of the said cash seized and detained by the applicant by virtue of section 38 of the above-mentioned Act be and is hereby authorised for a period of ...........(being a period not exceeding three months) from the date of this order until the................day of....................200....

Notice of this Order shall be given to .................and to any other person affected by this Order.

Dated this............. day of......................2 00..

Signed.................................

Judge of the District Court

38.6

SCHEDULE B

O.38, r. 6(1)

Criminal Justice Act 1994, Section 38 (as amended by Section 20, Proceeds of Crime (Amendment) Act 2005)

NOTICE OF APPLICATION FOR AN ORDER AUTHORISING THE FURTHER DETENTION OF CASH SEIZED

District Court Area of

District No.

...................................................................................... Applicant of .............................................................................................

....................................................................................... Respondent of .............................................................................................

WHEREAS an order was made by the Court at .............................. District Court on the......day of ................ 200... authorising pursuant to subsection (2) of section 38 of the above mentioned Act of 1994 the detention for the period of.................until the .... day of................200.........of cash in the amount of approximately ..............................(being an amount not less than the sum prescribed by the Minister for Justice, Equality and Law Reform, for the purposes of the said Act, as the prescribed sum) seized and detained on the ....day of...............200.........at.............................................. in the court (area and) district aforesaid from one ............................. in exercise of powers under subsection (1A) of section 38 of the above-mentioned Act of 1994.

TAKE NOTICE THAT the above-named applicant, ^* a member of the Garda Síochána ^* an officer of Customs and Excise, will apply under subsection (3) of section 38 of the above-mentioned Act of 1994 at the sitting of ............... District Court to be held at ................................................................................on the .....day of .......20... at ......a.m./p.m. for an Order authorising the further detention of the cash seized on the grounds that there are reasonable grounds for suspecting that:

^* the said ................................was importing or exporting or intended to or was about to import or export the said cash and

^* the said cash directly or indirectly represented the proceeds of crime

^* the said cash was intended by.....................................for use in connection with criminal conduct.

The continued detention of the said cash is justified

^* while its origin or derivation is further investigated

^* while consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

Dated this...........day of........................ 200...

Signed............................

Applicant

To. ......................, the Respondent

of..........................................

And to:..............................................

And to: District Court Clerk at............

38.7

SCHEDULE B

O.38, r. 6(3)

Criminal Justice Act 1994, Section 38 (as amended by Section 20, Proceeds of Crime (Amendment) Act 2005)

ORDER AUTHORISING FURTHER DETENTION OF CASH SEIZED

District Court Area of

District No.

......................................................................................... Applicant of............................................................................................ ......................................................................................... Respondent of. ............................................................................................

WHEREAS an order was made by the Court at ........................ District Court on the......day of ........... 200... authorising pursuant to subsection (2) of section 38 of the above-mentioned Act of 1994 the detention for the period of.............until the ....day of..........200........of cash in the amount of approximately ................... (being an amount not less than the sum prescribed by the Minister for Justice, Equality and Law Reform, for the purposes of the said Act, as the prescribed sum) seized and detained on the ....day of.............200........ at ...............................in the court (area and) district aforesaid from one ......................... in exercise of powers under subsection (1A) of section 38 of the above-mentioned Act of 1994

UPON APPLICATION this day by the above-named applicant, ^* a member of the Garda Síochána ^* an officer of Customs and Excise for an Order authorising the further detention of the said cash

BEING SATISFIED THAT

notice of the application was duly served

there are reasonable grounds for suspecting that:

^* the said .................. was importing or exporting or intended to or was about to import or export the said cash and

^* the said cash directly or indirectly represented the proceeds of crime

^* the said cash was intended by.................................for use in connection with criminal conduct.

the continued detention of the said cash is justified

^* while its origin or derivation is further investigated / ^* while consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

IT IS ORDERED that the further detention of the said cash seized and detained by the applicant by virtue of section 38 of the above-mentioned Act be and is hereby authorised for a period of ..........(being a period not exceeding three months) from the date of this order until the.............day of. .....................200...

Notice of this Order shall be given to .................and to any other person affected by this Order.

Dated this............day of....................200...

Signed.................................

Judge of the District Court

To........................, the Respondent

of..........................................

And to.......................

38.8

SCHEDULE B

O.38, r. 7(1)

Criminal Justice Act 1994, Section 38 (as amended by Section 20, Proceeds of Crime (Amendment) Act 2005)

NOTICE OF APPLICATION FOR AN ORDER DIRECTING THE RELEASE OF CASH SEIZED

District Court Area of

District No.

....................................................................................... Applicant of.............................................................................................

..........................................................................................Respondent of.............................................................................................

WHEREAS an order was made by the Court at ............................. District Court on the.....day of ................ 200... authorising pursuant to subsection (2) of section 38 of the above-mentioned Act of 1994 the detention for the period of.............until the ....day of.............200.........of cash in the amount of approximately ............................(being an amount not less than the sum prescribed by the Minister for Justice, Equality and Law Reform, for the purposes of the said Act, as the prescribed sum) seized and detained on the ....day of.............200......... at. ............................................in the court (area and) district aforesaid from one ............................... in exercise of powers under subsection (1A) of section 38 of the above-mentioned Act of 1994.

TAKE NOTICE THAT the above-named applicant,

being

^* the person from whom the said cash was seized, will apply under paragraph (a) of subsection (5) of section 38 of the above-mentioned Act of 1994

^* a person by or on whose behalf the said cash was being ^* imported/^* exported, will apply under paragraph (a) of subsection (5) of section 38 of the above-mentioned Act of 1994 ^† any other person, will apply under paragraph (b) of subsection (5) of section 38 of the above-mentioned Act of 1994

at the sitting of ................ District Court to be held at ................. on the ..... day of .......20...at ......a.m./p.m. for an order directing the release of the cash seized on the grounds that

there ^* are no/^* are no longer grounds for the detention of cash as are mentioned in subsection (2) of section 38 of the above-mentioned Act of 1994.

^† detention of the cash is not for that reason or for any other reason justified.

Dated this..........day of......................... 200...

Signed.............................

Applicant

To.........................................

of..........................................

^* member of the Garda Síochána ^* officer of Customs and Excise

And to: District Court Clerk at..................

38.9

SCHEDULE B

O.38, r. 7(3)

Criminal Justice Act 1994, Section 38 (as amended by Section 20, Proceeds of Crime (Amendment) Act 2005)

ORDER DIRECTING THE RELEASE OF CASH SEIZED

District Court Area of

District No.

.......................................................................................... Applicant of.............................................................................................

.........................................................................................Respondent of. ............................................................................................

WHEREAS an order was made by the Court at .......................... District Court on the......day of ............... 200... authorising pursuant to subsection (2) of section 38 of the above-mentioned Act of 1994 the detention for the period of............until the ....day of ...........200......of cash in the amount of approximately ...................... (being an amount not less than the sum prescribed by the Minister for Justice, Equality and Law Reform, for the purposes of the said Act, as the prescribed sum) seized and detained on the ....day of..............200......... at.........................................in the court (area and) district aforesaid from one ............................... in exercise of powers under subsection (1A) of section 38 of the above-mentioned Act of 1994

UPON APPLICATION this day by the above-named applicant, being

^* the person from whom the said cash was seized, under paragraph (a) of subsection (5) of section 38 of the above-mentioned Act of 1994

^* a person by or on whose behalf the said cash was being ^* imported/^* exported, under paragraph (a) of subsection (5) of section 38 of the above-mentioned Act of 1994

^† any other person, under paragraph (b) of subsection (5) of section 38 of the above-mentioned Act of 1994

BEING SATISFIED THAT

notice of the application was duly served

there ^* are no/^* are no longer reasonable grounds for suspecting that:

^* the said ................... was importing or exporting or intended to or was about to import or export the said cash and

^* the said cash directly or indirectly represented the proceeds of crime

^* the said cash was intended by...............................for use in connection with criminal conduct.

the continued detention of the said cash ^* is not/^* is no longer justified while its origin or derivation is further investigated or while consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

no application for the forfeiture of the said cash has been made under section 39 of the above-mentioned Act of 1994 and is undetermined

no proceedings have been issued (in the State or elsewhere) against any person for an offence with which the said cash is connected and are undetermined

^† detention of the cash is not for that reason or for any other reason justified.

IT IS ORDERED AND DIRECTED that the said cash seized and detained by virtue of section 38 of the above-mentioned Act be released to ...................of.......................

Dated this.............day of......................200...

Signed....................................

Judge of the District Court

Given this 28^th day of November 2005

Miriam Malone	Chairperson
Uinsin Mac Gruairc
Mary C Devins
Thomas E O'Donnell
David Kelly
Noel A Doherty

Elizabeth Hughes	Secretary

I concur in the making of the foregoing rules

Dated this 27^th day of January 2006

Michael McDowell

Minister for Justice, Equality and Law Reform

EXPLANATORY NOTE

(This does not form part of the instrument and does not purport to be a legal interpretation)

These Rules amend Order 38 to take account of section 20 of the Proceeds of Crime (Amendment) Act, 2005.

^* Delete words inapplicable

^† Where application by “any other person” under section 38(5)(b).

^* Delete words inapplicable

^† Where application by “any other person” under section 38(5)(b).

^* Delete words inapplicable

^† Where application by “any other person” under section 38(5)(b).

^* Delete words inapplicable

^† Where application by “any other person” under section 38(5)(b).