Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I am pleased to be in the Chamber to present the Criminal Justice (Mutual Assistance) (Amendment) Bill 2014, the primary purpose of which is to amend the Criminal Justice (Mutual Assistance) Act 2008. The Act gives effect to 12 international agreements that establish the existing legislative framework for the provision of mutual legal assistance. The Bill is necessary in order to give effect to a further six international instruments not yet provided for in the Act, but which have been ratified by the Oireachtas and must be implemented before December.

At the outset, I should set out what mutual legal assistance means in practice. In simple terms, it enables a state to provide, within its own jurisdiction, a service to another state related to the administration of justice in the latter. The type of assistance may concern such matters as the investigation of serious international crime, including the gathering of evidence for use abroad, or the service of documents issued by a judicial authority. It may also involve the freezing or confiscation of proceeds of crime that have been trafficked across borders.

The first of the six agreements to which the Bill is giving effect is the 2005 Council framework decision on the mutual recognition of financial penalties. This instrument establishes the rules under which a member state recognises and executes in its territory a financial penalty order issued by a court competent in criminal matters of another member state. This agreement will, for example, allow fines imposed by courts in one member state to be collected in another member state where the person concerned resides or is a citizen. The agreement applies to fines imposed that exceed €70 in respect of any criminal matter, including road traffic offences. It would apply to any fine imposed that is appealable to a criminal court. The Houses of the Oireachtas approved the terms of the Council framework decision in accordance with our constitutional requirements on 26 November 2003.

The second agreement is the 2006 Council framework decision on the mutual recognition of confiscation orders. This instrument establishes the rules under which a member state recognises and executes in its territory a confiscation order issued by a court competent in criminal matters of another member state. These confiscation orders are used primarily to recover proceeds of crime that have been trafficked from one state to another. They can be used to recover stolen objects or to seize financial criminal assets. Ireland receives approximately five or six such requests each year. The Houses approved the terms of the Council framework decision in accordance with our constitutional requirements on 2 June 2004.

The third agreement in respect of which I am asking the House to agree this Bill is the 2008 Council decision on enhancing the operation of special intervention units in crisis situations. This instrument aims to improve co-operation between the special intervention units of member states in man-made crisis situations that present a serious and direct physical threat, such as terrorist incidents. It should be noted that the framework decision would only become relevant in the event of a serious terrorist or similar incident. The situation envisaged would involve a large-scale crisis where a single member state may not have the means, resources or expertise to deal with it. Assistance could take the form of the provision of equipment, expertise or direct assistance on the territory of the requesting member state.

Any visiting specialist units would operate under the responsibility, authority and direction of the requesting member state. In addition, they would only be able to operate within the limits of their own national powers. The Houses of the Oireachtas approved the terms of this Council decision on 4 June 2008.
Council Decision 2009/426/JHA of 16 December 2008 strengthens Eurojust, which is an EU agency based in The Hague that deals with judicial co-operation in criminal matters. This Council decision amends the earlier Council Decision 2002/187/JHA which established Eurojust, and provides for increased co-operation of Eurojust with other agencies such as the European Anti-Fraud Office, OLAF, and Europol, and strengthens its operational capabilities. The Houses of the Oireachtas approved the terms of this Council decision on 26 November 2008.
The Council framework decision of 26 February 2009 enhances the procedural rights of persons and fosters the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. This instrument seeks to ensure that principles of natural justice are adhered to in cases where judgments in absentiaarise in regard to requests for mutual legal assistance. The Houses of the Oireachtas approved the terms of this Council framework decision on 10 December 2008.
An agreement between the European Union and Japan on mutual legal assistance in criminal matters was the subject of a Council decision in 2010 . This agreement provides for mutual legal assistance between EU member states and Japan, based on the laws of the requested state. Implementation by Ireland will be based on existing provisions of the 2008 Act. The Houses of the Oireachtas approved the terms of this Council decision on 25 November 2009.
These international agreements have all been ratified or adopted by Ireland following their approval by the Houses of the Oireachtas. For ease of reference, the text of each of these international agreements will be added to the Schedules to the 2008 Act by the Bill.
In addition to making the necessary legal provision for these international agreements, the Bill also makes a number of minor corrections to existing legislation. The legislation being amended includes the Criminal Justice Act 1994, the International War Crimes Tribunals Act 1998, the Criminal Justice (Joint Investigation Teams) Act 2004, the Garda Síochána Act 2005 and the Criminal Justice (Mutual Assistance) Act 2008.
I will answer any questions Senators may have, but will now go through some of the sections in more detail. Sections 7 to 23 amend the 2008 Act to give effect to Council Framework Decision 2006/783/JHA. These are the most technical parts of the Bill and I will elaborate a little on the need for these sections and the effect they will have on the legislation. This instrument establishes new rules under which a member state recognises and executes in its territory a confiscation order issued by a court competent in criminal matters of another member state. Under the existing provisions of the 2008 Act, all external confiscation orders must be translated by an Irish court into a domestic confiscation co-operation order. However, under the provisions of this framework decision, courts will in future recognise confiscation orders from member states without the necessity to issue a domestic confiscation co-operation order. This means that effectively we will be required to operate two different regimes for dealing with confiscation orders received from other states. Those received from EU states will not require a domestic confiscation co-operation order but those received from non-EU states will continue to require a domestic co-operation order issued by an Irish court.
Section 7 amends section 38 of the 2008 Act to provide that the powers of recovery of property by the High Court or by a receiver will apply to confiscation orders transmitted by member states, as well as to confiscation co-operation orders issued by the court in respect of requests from non-member states.
Section 8 amends section 44 of the 2008 Act to provide that freezing of the relevant property remains in place until such time as the property confiscation process has been concluded or terminated.
Section 9 amends section 45(1) of the 2008 Act to provide that the central authority may apply to the High Court to have a freezing co-operation order varied or discharged. This corrects an oversight in the 2008 Act. At present, only a person affected by the order can apply to have it varied or discharged. However, the Department has found that where a freezing co-operation order is flawed, for whatever reason, the person affected often does not have reason or need to seek a variation or discharge. This amendment will allow the central authority to seek a variation or discharge in such circumstances.
Section 14 creates a new section 51B in the 2008 Act. This new section provides for enhanced provisions for refusal of confiscation orders. Senators may wish to note that for reasons of legal consistency, I am providing that the grounds for refusal or postponement of confiscation will be exactly the same, whether a confiscation request is from an EU or non-EU state. The grounds for refusal reflect the provisions of Article 8 of Council Framework Decision 2006/783/JHA. Among the grounds for refusal are where the offence is not an offence to which the international instrument relates and that a person cannot be tried a second time for an act on which another court has already adjudicated. Subsection (1)(d) provides for refusal if the judgment was made in absentiaand the defendant did not have an opportunity to defend the case. This particular provision is required to give effect to the 2009 Council framework decision on decisions rendered in absentia.
Section 15 creates a new section 51C in the 2008 Act, to provide for postponement of confiscation. The grounds for postponement include where it might prejudice an ongoing criminal investigation in the State or where confiscation proceedings in respect of the property are already in train.
Sections 22 and 23 amend the 2008 Act to provide that relevant sections of the Act apply to external confiscation requests from EU member states as they apply to requests from non-member states.
The next element of the Bill is a new element in mutual assistance legislation to give effect to Framework Decision 2005/214/JHA on mutual recognition of financial penalties. When this part of the Bill is enacted and commenced, the effect will be that fines greater than €70 which are imposed in this State can be collected by another member state if the person concerned is a resident or citizen of that other EU state. Furthermore, penalties imposed in other EU states on persons who are residents or citizens of this State will be collected in this State. The provisions of the Fines (Payment and Recovery) Act 2014 will apply to such fines.
Section 24 inserts a new part into the 2008 Act to provide for this mutual recognition of financial penalties. Sections 60A, 60B, 60C, 60D, 60E, 60F and 60G, which will be in the new part, set out the definitions and procedures in this regard and give detail on how mutual recognition of fines will be carried out in member states. Section 60I provides that amounts collected on foot of executing a financial penalty order accrue to the Exchequer unless otherwise agreed with the issuing state.
Minor technical amendments will be made to the wording of the 2008 Act. Sections 28 and 29 make an explicit provision that where evidence sought by another state is already in the possession of the Garda Síochána or the evidence is obtained on foot of a warrant, the Garda may transmit the evidence to the requesting state. This is simply to provide legal clarity.

Section 30 provides that where requests for searches for evidence under section 74 or 75 are conducted by the Revenue Commissioners in relation to revenue offences, the officers of the Revenue Commissioners have the same powers of search and seizure of evidence as have An Garda Síochána.

Sections 31 and 35 give effect to the 2008 Council Decision on enhancing the operation of special intervention units in crisis situations as I have already described. The section inserts a new Chapter 8A in the 2008 Act setting out the procedures which will apply in regard to requests and operation of special intervention units. I have already said the type of situations that it is expected that this would apply. I can say that an incident of this type has not happened to date in Ireland or in any other EU member state. In the event that such a major international incident did occur here we would be able to request appropriate assistance from other member states. Senators will note that the express agreement of the Government will be required if, as a result of the commission of a criminal offence, a crisis situation did exist and it is in the public interest to seek the assistance of a special intervention unit from another state.

Sections 94A to 94E, inclusive, go into details of what would happen if a crisis situation applied. They explain how it would be defined and how the Garda Commissioner would, for example, establish a special intervention unit if we wanted to supply aid to another member state. The following sections deal with repealing the sections in different pieces of legislation which is necessary in order for these framework decisions to be fully implemented and passed here today.

I thank Senators for giving me the opportunity to present this legislation today. I hope it will receive much support in this House. It will assist in enhancing mutual legal assistance and mutual assistance provision. It will provide for wider and more efficient co-operation in fighting transnational crime which, as we know, is a huge issue. Whether we talking about drugs, trafficking of human beings or financial criminal activity we need this kind of international co-operation and sharing of information, and co-operation between police forces and between governments. The increased mutual assistance powers provided here will be of use both in detecting and prosecuting criminals. It is essential legislation in a world where crime is international and does not respect any borders.

I commend the Bill to the House and look forward to hearing the views of Senators.