Criminal Justice (Mutual Assistance) Act 2008

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Amendment of Criminal Justice Act 1994.

105.— The Act of 1994 is amended—

(a) in sections 3(1), 24 and 25, 28 to 30 and 65, by the substitution of “freezing order” for “restraint order”,

(b) in section 30, by the substitution of “freezing” for “restraint”,

(c) by the insertion of the following subsection after section 3(16):

“(16A) References in this Act (other than section 9) to an offence in respect of which a confiscation order might be made under section 9 of this Act shall be construed as references to an indictable offence (other than a drug trafficking offence), irrespective of whether a person has been convicted of it on indictment.”,

(d) by the substitution of the following Table for the Table to section 19:

“

”,

(e) by the addition to Part IV of the following section:

“Revenue offence.

32A.— For the avoidance of doubt it is hereby declared that, in relation to an offence under the law of a country or territory other than the State, references in this Part to an offence shall be construed as including references to an offence in connection with taxes, duties, customs or exchange regulation.”,

and

(f) in section 60, by the substitution of “restraint (including a freezing order)” for “restraint”,

(g) by the substitution of the following section for section 63:

“Order to make material available.

63.— (1) For the purposes of an investigation into whether a person has engaged in criminal conduct or criminal proceedings in relation thereto, a member of the Garda Síochána may apply for an order under subsection (3) of this section in relation to any particular material or material of a particular description to a judge of the District Court for the district where the material is situated.

(2) On such an application the judge may make an order under subsection (3) of this section, if satisfied—

(a) that there are reasonable grounds for suspecting that the person has engaged in criminal conduct,

(b) that the material concerned is likely to be of substantial value (whether by itself or together with other material) for the purposes of such investigation or proceedings, and

(c) that there are reasonable grounds for believing that material should be produced or that access to it should be given, having regard to the benefit likely to accrue to the investigation or proceedings and any other relevant circumstances.

(3) An order under this subsection—

(a) shall require any person who appears to the judge to be in possession of the material—

(i) to produce it to a named member of the Garda Síochána so that he or she may take it away, or

(ii) to give the member access to it within 7 days, unless it appears to the judge that another period would be appropriate in the particular circumstances of the case,

(b) may, if the order relates to material at any place and on application by the member concerned, require any person who appears to the judge to be entitled to grant entry to the place to allow the member to enter it to obtain access to the material,

(c) shall authorise the member, if the person so required to grant entry to the place does not do so—

(i) to enter the place, accompanied by such other members or persons or both as the member thinks necessary, on production if so requested of the order and, if necessary, by the use of reasonable force,

(ii) to search the place and any persons present there,

(iii) to take away the material, and

(iv) to take such other steps as appear to the member to be necessary for preserving the material and preventing interference with it.

(4) Where the material consists of information contained in a computer, an order under subsection (3) of this section shall have effect as an order to produce the material, or to give access to it, in a form which is legible and comprehensible or can be made so and in which it can be taken away.

(5) Such an order—

(a) in so far as it may empower a member to take away a document or to be given access to it, shall authorise him or her to make a copy of it and to take the copy away,

(b) shall not confer any right to production of, or access to, any material subject to legal privilege, and

(c) subject to paragraph (b) of this subsection and subsection (10) of this section, shall have effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.

(6) Any material taken away by a member under this section may be retained by him or her for use as evidence in any proceedings.

(7) A judge of the District Court may at a sitting of the Court vary or discharge an order under this section on the application of a member or any person to whom the order relates.

(8) A member searching a place under the authority of an order under this section may—

(a) require any person present at the place where the search is being carried out to give his or her name and address to the member, and

(b) arrest without warrant any person who—

(i) obstructs or attempts to obstruct the member in the carrying out of his or her duties,

(ii) fails to comply with a requirement under paragraph (a) of this subsection, or

(iii) gives a name or address which the member has reasonable cause to believe is false or misleading.

(9) A person who—

(a) obstructs or attempts to obstruct a member acting under the authority of an order under this section,

(b) fails to comply with a requirement under subsection (3)(a) of this section, or

(c) gives a false or misleading name or address to a member,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

(10) Where—

(a) material has been supplied to a Government department or other authority by or on behalf of the government of another state, and

(b) an undertaking was given that the material would be used only for a particular purpose or purposes,

an order under subsection (3) of this section shall not have the effect of requiring or permitting the production of, or the giving of access to, the material for any other purpose without the consent of that government.

(11) In this section—

“criminal conduct” means—

(a) drug trafficking,

(b) the commission of an indictable offence or more than one such offence,

(c) holding funds subject to confiscation,

(d) benefiting from—

(i) drug trafficking,

(ii) an indictable offence or more than one such offence,

(iii) assets or proceeds deriving from criminal conduct or the receipt or control of such assets or proceeds, including conduct which occurs outside the State and which would constitute an indictable offence or more than one such offence—

(I) if it occurred in the State, and

(II) if it constituted an offence or more than one such offence under the law of the state or territory concerned.”.