Irish Legislation

Number 27 of 2019

CRIMINAL JUSTICE (INTERNATIONAL CO-OPERATION) ACT 2019

CONTENTS

Section

1. Definitions

2. Designation of United Kingdom inquest

3. Taking evidence in State from member of Garda Síochána for purposes of Northern Ireland troubles related inquest or designated United Kingdom inquest

4. Amendment of section 20 of European Arrest Warrant Act 2003

5. Power to enter into agreements with relevant persons or bodies outside the State

6. Amendment of section 51 of Act of 2005

7. Power of Ombudsman Commission to enter into agreements with law enforcement agencies or other relevant persons or bodies outside the State

8. Amendment of section 107 of Criminal Justice (Mutual Assistance) Act 2008

9. Expenses

10. Short title and commencement

Acts Referred to

Commissions of Investigation Act 2004 (No. 23)

Coroners Act 1962 (No. 9)

Criminal Justice (Joint Investigation Teams) Act 2004 (No. 20)

Criminal Justice (Mutual Assistance) (Amendment) Act 2015 (No. 40)

Criminal Justice (Mutual Assistance) Act 2008 (No. 7)

Data Protection Act 2018 (No. 7)

Data Protection Acts 1988 to 2018

European Arrest Warrant Act 2003 (No. 45)

Garda Síochána Act 2005 (No. 20)

Tribunals of Inquiry (Evidence) Acts 1921 to 2011

Number 27 of 2019

CRIMINAL JUSTICE (INTERNATIONAL CO-OPERATION) ACT 2019

An Act to provide for the taking of evidence in the State from a member of the Garda Síochána for the purposes of certain inquests and inquiries held in the United Kingdom of Great Britain and Northern Ireland; to permit the Garda Síochána to enter into agreements for co-operation with certain persons or bodies outside the State; to permit the Garda Síochána Ombudsman Commission to enter into agreements for co-operation with law enforcement agencies or certain other persons or bodies outside the State; and for those purposes and other purposes, to amend the Garda Síochána Act 2005 ; to amend the European Arrest Warrant Act 2003 ; to amend the Criminal Justice (Mutual Assistance) Act 2008 ; and to provide for related matters.

[23rd July, 2019]

Be it enacted by the Oireachtas as follows:

Definitions

1. In this Act—

“Act of 2005” means the Garda Síochána Act 2005 ;

“designated United Kingdom inquest” means an inquest or inquiry that has been designated under section 2;

“Garda Commissioner” means the Commissioner of the Garda Síochána;

“legal representative” means a practising solicitor or a practising barrister;

“Minister” means the Minister for Justice and Equality;

“Northern Ireland troubles related inquest” means an inquest that is being held under the law of Northern Ireland into the death of any person in Northern Ireland that occurred or may have occurred as a result of an act of violence or force carried out during the period beginning on 1 January 1966 and ending on 10 April 1998—

(a) for reasons connected with the constitutional position of, or political or sectarian hostility in, Northern Ireland, or

(b) in connection with the prevention, detection or investigation of offences connected with the reasons referred to in paragraph (a).

Designation of United Kingdom inquest

2. (1) The Minister may, for the purposes of section 3 and subject to subsection (2) , designate in writing an inquest or inquiry that is being held under the law of England and Wales, of Scotland or of Northern Ireland (other than a Northern Ireland troubles related inquest) into the death of any person as a designated United Kingdom inquest.

(2) The Minister may make a designation under subsection (1) if, after consultation with the Garda Commissioner, the Minister is satisfied that there has been co-operation between the Garda Síochána and a police force or other law enforcement agency established under the law of the United Kingdom or of any part of the United Kingdom, in respect of the investigation into the death to which the inquest or inquiry relates.

(3) As soon as practicable after making a designation under subsection (1), the Minister shall cause a copy of the designation to be laid before each House of the Oireachtas.

Taking evidence in State from member of Garda Síochána for purposes of Northern Ireland troubles related inquest or designated United Kingdom inquest

3. (1) This section shall apply where a coroner holding a Northern Ireland troubles related inquest or a designated United Kingdom inquest makes a request to the Garda Commissioner for assistance, in the form of the taking of evidence in the State from a member of the Garda Síochána in accordance with this section, for the purposes of the inquest concerned (in this section referred to as a “request for assistance”).

(2) A request for assistance shall be in writing and shall specify—

(a) the questions that the coroner requests be asked of a member of the Garda Síochána in the taking of evidence in accordance with this section, and

(b) the purpose for which the evidence is requested.

(3) Subject to subsection (4), the Garda Commissioner may accede to a request for assistance in respect of some or all of the questions specified therein.

(4) The Garda Commissioner shall, after consultation with the Minister, refuse a request for assistance in respect of some or all of the questions specified therein, where the Garda Commissioner is of the opinion that to accede to the request for assistance in respect of those questions would—

(a) be likely to prejudice the sovereignty, security or other essential interests of the State,

(b) be likely to prejudice a criminal investigation, or criminal proceedings, in the State, or

(c) otherwise be inconsistent with the functions of the Garda Síochána under section 7 of the Act of 2005.

(5) A decision of the Garda Commissioner under subsection (3) in relation to a request for assistance shall be in writing and shall specify—

(a) the questions, if any, in respect of which the Garda Commissioner is acceding to the request for assistance, and

(b) the questions, if any, in respect of which the Garda Commissioner is refusing the request for assistance.

(6) The Garda Commissioner shall, as soon as practicable after making a decision under subsection (3), provide a copy of the decision to the coroner who made the request for assistance and notify him or her in writing—

(a) in relation to the questions specified in the decision to which subsection (5)(a) applies, that the evidence concerned—

(i) shall be taken in accordance with this section,

(ii) shall be given in accordance with this section by a designated member of the Garda Síochána, and

(iii) shall be provided to the coroner subject to the condition referred to in subsection (13),

and

(b) in relation to the questions specified in the decision to which subsection (5)(b) applies, that the request for assistance is, in respect of those questions, refused.

(7) Where the Garda Commissioner accedes to a request for assistance in respect of some or all of the questions specified therein, he or she shall—

(a) designate a member of the Garda Síochána not below the rank of Chief Superintendent (in this section referred to as a “designated member of the Garda Síochána”) as the member of the Garda Síochána from whom the evidence concerned may be taken in accordance with this section, and

(b) make an application to the President of the High Court for the nomination of a judge of that Court (in this section referred to as the “nominated judge”) to take the evidence concerned in accordance with this section, which application shall be accompanied by a copy of—

(i) the request for assistance,

(ii) the decision of the Garda Commissioner under subsection (3), and

(iii) the notification under subsection (6).

(8) The nominated judge shall take the evidence referred to in subsection (7) in accordance with this section.

(9) For the purposes of subsection (8)—

(a) no person other than the nominated judge shall ask questions of the designated member of the Garda Síochána,

(b) the nominated judge shall ask the designated member of the Garda Síochána the questions specified in the decision under subsection (3) to which subsection (5)(a) applies only,

(c) the evidence shall be taken—

(i) on oath, and

(ii) subject to subsection (10), otherwise than in public,

and

(d) the nominated judge may give such directions in relation to the arrangements for the taking of the evidence as he or she considers appropriate, including directions for the purpose of securing the safety of the designated member of the Garda Síochána from whom the evidence is to be taken.

(10) The taking of evidence under subsection (8) may be done in the presence of—

(a) the coroner who made the request for assistance or his or her legal representative, and

(b) the Garda Commissioner or his or her legal representative.

(11) For the purpose of giving evidence under subsection (8), a designated member of the Garda Síochána—

(a) shall not be compelled to give any evidence which he or she could not be compelled to give in criminal proceedings in the State, and

(b) shall be entitled to the immunities and privileges of a witness before the High Court.

(12) After the taking of the evidence under subsection (8), the nominated judge shall—

(a) certify the record of the evidence as a true copy of the evidence taken, and

(b) cause a copy of the record of the evidence so certified to be transmitted to—

(i) the coroner concerned, and

(ii) the Garda Commissioner.

(13) The provision of evidence to a coroner under this section shall be subject to the condition that it shall not, without the consent of the Garda Commissioner, be used for any purpose other than the purpose specified by the coroner in accordance with subsection (2)(b) in his or her request for assistance.

(14) This section applies to a Northern Ireland troubles related inquest and a designated United Kingdom inquest that—

(a) has begun but has not been completed before the coming into operation of this section, or

(b) begins on or after the coming into operation of this section.

Amendment of section 20 of European Arrest Warrant Act 2003

4. Section 20 of the European Arrest Warrant Act 2003 is amended—

(a) in subsection (1), by the substitution of “the High Court shall,” for “the High Court may,”, and

(b) by the deletion of subsection (2).

Power to enter into agreements with relevant persons or bodies outside the State

5. The Act of 2005 is amended by the insertion of the following section after section 28:

“28A. (1) The Garda Commissioner may, with the prior consent of the Government, enter into an agreement on behalf of the Garda Síochána with a relevant person or body for the purpose of facilitating the performance by each party to the agreement of their respective functions, which agreement may, for that purpose, provide for—

(a) the co-operation of the parties,

(b) the exchange of information between the parties, or

(c) such other matters as the Garda Commissioner thinks fit.

(2) Subject to the General Data Protection Regulation and the Data Protection Acts 1988 to 2018, the Garda Commissioner may, pursuant to and in accordance with the terms of an agreement under this section, provide information to, and receive information from, the other party to the agreement.

(3) In this section—

‘General Data Protection Regulation’ means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 ¹ on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;

‘relevant person or body’ means a person or body outside the State in whom or in which functions are vested under the law of a place other than the State that are equivalent, or similar, to the functions of—

(a) the Ombudsman Commission under this or any other enactment,

(b) the Garda Síochána Inspectorate under this or any other enactment,

(c) the Authority under this or any other enactment,

(d) a coroner under the Coroners Act 1962 ,

(e) a commission of investigation under the Commissions of Investigation Act 2004 ,

(f) a tribunal of inquiry under the Tribunals of Inquiry (Evidence) Acts 1921 to 2011, or

(g) the Criminal Assets Bureau.”.

Amendment of section 51 of Act of 2005

6. Section 51 (as amended by section 35 of the Criminal Justice (Mutual Assistance) (Amendment) Act 2015 ) of the Act of 2005 is amended—

(a) by the substitution of the following subsection for subsection (1):

“(1) Subject to subsection (3), the Garda Commissioner shall assign eligible members of the Garda Síochána in such numbers and of such rank, as the Government may determine for service outside the State—

(a) to carry out duties of a police character with an international organisation,

(b) to advise others on, or to monitor their performance of, such duties, or

(c) to participate in a special intervention unit, within the meaning of Part 7A (inserted by section 31 of the Criminal Justice (Mutual Assistance) (Amendment) Act 2015 ) of the Criminal Justice (Mutual Assistance) Act 2008 , for the control of a crisis situation occurring in the territory of a member state.”,

and

(b) by the substitution of the following subsection for subsection (2):

“(2) Subject to subsection (3), the Garda Commissioner may assign eligible members of the Garda Síochána for service outside the State—

(a) to carry out liaison duties with Europol or, subject to the agreement of the Government, with a law enforcement agency of a state other than the State,

(b) as members of a joint investigation team within the meaning of the Criminal Justice (Joint Investigation Teams) Act 2004 , as amended by section 96 of the Criminal Justice (Mutual Assistance) Act 2008 ,

(c) in connection with the making of a controlled delivery outside the State pursuant to a request under section 89 of the Criminal Justice (Mutual Assistance) Act 2008 , or

(d) on secondment to an international organisation with the consent of the Minister.”.

Power of Ombudsman Commission to enter into agreements with law enforcement agencies or other relevant persons or bodies outside the State

7. The Act of 2005 is amended by the insertion of the following section after section 81:

“81A. (1) The Ombudsman Commission may, with the prior consent of the Government, enter into an agreement with a relevant person or body for the purpose of facilitating the performance by each party to the agreement of their respective functions, which agreement may, for that purpose, provide for—

(a) the co-operation of the parties,

(b) the exchange of information between the parties, or

(c) such other matters as the Ombudsman Commission thinks fit.

(2) Subject to the General Data Protection Regulation and the Data Protection Acts 1988 to 2018, the Ombudsman Commission may, pursuant to and in accordance with the terms of an agreement under this section, provide information to, and receive information from, the other party to the agreement.

(3) In this section—

‘General Data Protection Regulation’ means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 ² on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;

‘relevant person or body’ means—

(a) a police service or other law enforcement agency outside the State, or

(b) a person or body outside the State in whom or in which functions are vested under the law of a place other than the State that are equivalent, or similar, to the functions of the Ombudsman Commission under this or any other enactment.”.

Amendment of section 107 of Criminal Justice (Mutual Assistance) Act 2008

8. Section 107 (as amended by section 208 of the Data Protection Act 2018 ) of the Criminal Justice (Mutual Assistance) Act 2008 is amended, in subsection (3)(b), by the substitution of “subsection (2)(b)” for “subsection (5)(b)”.

Expenses

9. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

Short title and commencement

10. (1) This Act may be cited as the Criminal Justice (International Co-operation) Act 2019.

(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

¹ O.J. No. L119, 4.5.2016, p.1

² O.J. No. L119, 4.5.2016, p.1