Criminal Justice (Mutual Assistance) (Amendment) Act 2015

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Financial penalties

24. The Principal Act is amended by the insertion of the following Part after Part 4:

“Part 4A

Financial Penalties

Interpretation

60A. In this Part—

‘appropriate court’, in relation to an external financial penalty order, means a court in the State that has jurisdiction to impose a financial penalty of the same amount as the sum mentioned in the external financial penalty order;

‘certificate’ means the certificate provided for in Article 4 of the 2005 Framework Decision, the standard form of which is provided for in the Annex to that Framework Decision;

‘competent authority’, in relation to a member state, means—

(a) the issuing judicial authority in the member state, or

(b) the authority in the member state that the General Secretariat of the Council of the European Union has, in accordance with Article 2 of the 2005 Framework Decision, been informed is to be the competent authority in that member state;

‘executing state’, in relation to a financial penalty order, means the member state to which the order is transmitted for enforcement;

‘external financial penalty order’ means a financial penalty order that is made by an issuing judicial authority in an issuing state;

‘financial penalty’, in relation to a defendant, means an obligation for the defendant to pay, further to a conviction for an offence, in an issuing state or the State—

(a) a fine, costs or any other sum of money to the issuing state or the State, as the case may be,

(b) a sum as compensation for the benefit of a victim of the offence, or

(c) a sum of money to a public fund or victim support organisation;

‘financial penalty order’, means an order of—

(a) a court in the State imposing a financial penalty, or

(b) an issuing judicial authority in an issuing state imposing a financial penalty that is enforceable under the law of that state;

‘issuing judicial authority’, in relation to an external financial penalty order, means a judicial authority in an issuing state, as defined in the law of that state, which makes, validates or in any way confirms the external financial penalty order;

‘issuing state’, in relation to an external financial penalty order, means the member state in which that order was made.

Request for execution of financial penalty order in member state

60B. (1) If a financial penalty order relates to a defendant who has property or income, or is normally resident, in a member state, the registrar or clerk of the court concerned shall, on request of the prosecuting authority and subject to any conditions that may be specified by rules of court, give to the Central Authority—

(a) a duly authenticated copy of the order, and

(b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

(2) If the financial penalty which is the subject of the financial penalty order has not been paid in whole or in part, the Central Authority may transmit to the competent authority in the member state concerned—

(a) the documents mentioned in subsection (1),

(b) a certificate, and

(c) a request that the financial penalty order be executed in accordance with the 2005 Framework Decision.

(3) Where the Central Authority makes a request under subsection (2) —

(a) if all or part of the financial penalty order has not been executed in the State or in another member state, stating the amount paid and requesting that the amount to be paid in the member state concerned not exceed the difference between the amount specified in the financial penalty order and the amount paid, and

(b) if the defendant has made any voluntary payment in respect of the financial penalty order after it was transmitted, stating the amount of that voluntary payment and requesting that the amount to be paid to the member state concerned not exceed the difference between the amount specified in the financial penalty order and the amount paid voluntarily, and

(c) if the financial penalty order ceases to be enforceable, stating that fact.

(4) If—

(a) an amount is paid to the member state concerned in pursuance of a request under subsection (2), and

(b) the amount paid is less than, or equal to, the amount ordered to be paid under the financial penalty order,

the amount so ordered under the financial penalty order is deemed to be reduced by an amount equal to the amount paid or, as the case may be, the financial penalty order is deemed to be discharged.

(5) In any proceedings a certificate purporting to be issued by a competent authority in a member state and stating—

(a) the amount of any payment made to the member state pursuant to the request, and

(b) the date of that payment,

is admissible, without further proof, as evidence of those matters.

(6) Transmission of documents referred to in subsections (2) and (3) shall be by any means capable of producing a written record under conditions which allow the competent authority concerned to establish the documents’ authenticity.

Transmission to State of external financial penalty order

60C. (1) An external financial penalty order may be transmitted by the competent authority of an issuing state to the Central Authority with a request for its execution.

(2) The external financial penalty order shall be accompanied by—

(a) a certificate signed and certified as accurate by the competent authority in the issuing state and any supporting documentation, and

(b) any required translations,

and shall include any further information required by the 2005 Framework Decision.

(3) Transmission of the documents referred to in subsections (1) and (2) shall be by any means capable of producing a written record under conditions which allow the Central Authority or the appropriate court to establish the documents’ authenticity.

(4) Subsection (3) is deemed to have been complied with if facsimile copies of those documents and any translation thereof are transmitted in compliance with any regulations that may be made under subsection (6).

(5) If the Central Authority or the appropriate court is not satisfied that a facsimile copy of a document transmitted in accordance with this section corresponds to the document of which it purports to be such a copy, the Central Authority or the appropriate court shall—

(a) request the competent authority in the issuing state to cause the original or a copy of the document to be transmitted to the Central Authority, and

(b) agree with that competent authority regarding the manner in which the original or copy is to be so transmitted.

(6) The Minister may, if he or she considers it necessary for the purposes of ensuring the accuracy of documents transmitted in accordance with this section, make regulations—

(a) prescribing procedures to be followed in connection with the transmission of documents in accordance with this section, and

(b) specifying features to be present in any equipment being used in that connection.

External financial penalty orders

60D. (1) Where the Central Authority receives an external financial penalty order that has been transmitted by a competent authority in an issuing state, it shall proceed to the execution of that order as though it were an order of an appropriate court.

(2) Where the Central Authority considers that there are grounds for refusal, variation or termination of the execution of an external financial penalty order transmitted to it in accordance with the 2005 Framework Decision, the Central Authority shall cause an application to be made to the appropriate court for an order under section 60E, 60F or 60G.

(3) Where the Central Authority proceeds to execute an external financial penalty order that has been transmitted by a competent authority in an issuing state, the Fines (Payment and Recovery) Act 2014 shall apply to the execution of that financial penalty order as though it were an order of an appropriate court.

(4) Where a sum of money payable or remaining to be paid under an external financial penalty order is expressed in a currency other than euro, the external financial penalty order shall require payment of an equivalent euro amount, calculated at the baseline rate of exchange prevailing between that currency and the euro on the date of the making of the external financial penalty order.

Refusal to execute external financial penalty order

60E. (1) On application made under section 60D(2) and without prejudice to section 3, the appropriate court shall make an order refusing the execution of an external financial penalty order made by an issuing judicial authority if—

(a) a financial penalty order has been made in the State against the defendant in respect of the conduct which resulted in the making of the external financial penalty order,

(b) a financial penalty order has been made in a state other than the issuing state or the State, in respect of the conduct which resulted in the making of the external financial penalty order, and has been executed,

(c) the conduct which resulted in the making of the external financial penalty order is not an offence in the State,

(d) the execution of the financial penalty order is statute barred in the State,

(e) the criminal conduct concerned was either committed outside the territory of the issuing state concerned or committed wholly or partly in the State,

(f) there is immunity or privilege under the law of the State which makes it impossible to execute the external financial penalty order,

(g) the defendant could not have been convicted in the State of an offence in respect of the conduct which resulted in the making of the external financial penalty order because of his or her age,

(h) the defendant did not appear in person at the proceedings resulting in the external financial penalty order, unless the certificate from the issuing judicial authority states that—

(i) he or she was summonsed to attend in person the proceedings, or he or she was otherwise made aware, by official notification, of the time when, and the place at which, those proceedings were to take place, and he or she was informed that an external financial penalty order could be made even if he or she did not appear,

(ii) he or she was aware of the proceedings concerned and was represented at those proceedings by a lawyer whom he or she appointed,

(iii) after having been served with the external financial penalty order and expressly informed of his or her right to a retrial or an appeal at which he or she would have been able to participate (and which would have been an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could have led to a reversal of the original decision, he or she—

(I) expressly stated that he or she did not contest the external financial penalty order, or

(II) did not request the retrial or appeal within the time limit for exercising that right,

or

(iv) where he or she was not personally served with the external financial penalty order, an undertaking has been given by the issuing state concerned that he or she will be personally served with the external financial penalty order without delay and will be expressly informed of his or her right to a retrial or an appeal in which he or she will be able to participate (and which will be an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could lead to a reversal of the order, and of the time limit for exercising that right,

or

(i) the amount of the financial penalty the subject of the external financial penalty order is less than €70.

(2) If the certificate did not accompany the external financial penalty order, or is incomplete or manifestly does not correspond to the external financial penalty order, the appropriate court—

(a) may permit the certificate, or a completed or corrected certificate, to be produced by or on behalf of the court concerned in accordance with a specified deadline, or

(b) may refuse to execute the external financial penalty order, unless it is satisfied, by the production of an equivalent document or otherwise, that the information provided by or on behalf of the court concerned is sufficient.

Variation of amount payable under external financial penalty order

60F. On application made under section 60D(2) and without prejudice to section 3, the appropriate court may make an order—

(a) where that court is satisfied that, had the conduct which was the subject of the conviction on which that external financial penalty order was made been carried out in the State, the maximum amount of a penalty that could have been imposed was less than the sum mentioned in that order, reducing the amount that the defendant is to pay to that maximum amount,

(b) where the court is satisfied that there has been partial payment of the sum mentioned in the external financial penalty order, reducing the amount that the defendant is to pay to the difference between the sum mentioned in the order and the amount already paid, or

(c) where the court is satisfied that, in all the circumstances, the defendant should be excused from paying all or part of the sum mentioned in the external financial penalty order, ordering that the amount be so reduced.

Termination of execution of external financial penalty order

60G. Where an external financial penalty order has been transmitted to the Central Authority for execution in the State, the execution of the external financial penalty order shall terminate as soon as may be after the Central Authority is informed by the competent authority of the issuing state concerned that that external financial penalty order has ceased to be enforceable or has been withdrawn by that issuing state or where the court is satisfied on an application made under section 60D(2) that, in all the circumstances, the defendant should be excused from paying all or part of the sum mentioned in the external financial penalty order, ordering that the amount be so reduced.

Central Authority to inform competent authority

60H. The Central Authority shall inform, by any means capable of producing a written record, the competent authority in the issuing state that transmitted an external financial penalty order of the following:

(a) the Central Authority has received the external financial penalty order, as soon as may be after the Central Authority receives it;

(b) an order refusing the execution of the financial penalty order under section 60E, or reducing the amount to be paid on foot of it under section 60F, has been made, as soon as may be after it is made;

(c) an order terminating the execution of the external financial penalty order has been made, as soon as may be after it is made;

(d) the execution of the external financial penalty order is complete, as soon as may be after it is complete; or

(e) imprisonment or another alternative sanction has been imposed by a court in the State on the defendant in accordance with Article 10 of the 2005 Framework Decision, as soon as may be after it is imposed.

Amounts to accrue to Exchequer

60I. An amount paid on foot of an external financial penalty order shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct, unless an agreement is made between the Central Authority and the competent authority in the issuing state concerned that all or part of that amount will be paid to that issuing state.”.