Criminal Justice (Amendment) Act 2009
Source: Iris Oifigiúl 60 2009-07-28 00987-01000

num: 1
paragraphs: — This Act may be cited as the Criminal Justice (Amendment) Act 2009.
num: 2
paragraphs: — In this Act—
“ Act of 1939” means the Offences against the State Act 1939 ;
“ Act of 1984” means the Criminal Justice Act 1984 ;
“ Act of 1996” means the Criminal Justice (Drug Trafficking) Act 1996 ;
“ Act of 1997” means the Criminal Law Act 1997 ;
“ Act of 1999” means the Criminal Justice Act 1999 ;
“ Act of 2006” means the Criminal Justice Act 2006 ;
“ Act of 2007” means the Criminal Justice Act 2007 .
num: 3
paragraphs: — (1) Section 70(1) of the Act of 2006 is amended—
(a) by substituting the following for the definition of “criminal organisation”:
“‘ criminal organisation ’ means a structured group, however organised, that has as its main purpose or activity the commission or facilitation of a serious offence;”,
and
(b) by substituting the following for the definition of “structured group”:
“ ‘ structured group ’ means a group of 3 or more persons, which is not randomly formed for the immediate commission of a single offence, and the involvement in which by 2 or more of those persons is with a view to their acting in concert; for the avoidance of doubt, a structured group may exist notwithstanding the absence of all or any of the following:
(a) formal rules or formal membership, or any formal roles for those involved in the group;
(b) any hierarchical or leadership structure;
(c) continuity of involvement by persons in the group.”.
(2) Section 70 of the Act of 2006 is further amended by adding the following subsection:
“(3) For the purposes of the references in sections 71(2)(d) and 74(1)(b)(i) to a person’s being ordinarily resident in the State, a person shall be taken to be so resident, on the date of the commission of the offence to which section 71(1) or 74(1), as the case may be, applies, if, for the 12 months immediately preceding that date, the person has his or her principal place of residence in the State.”.
num: 4
paragraphs: — Section 71 of the Act of 2006 is amended—
(a) in subsection (2)(d), by substituting “person ordinarily resident in the State” for “stateless person habitually resident in the State”, and
(b) by deleting subsection (5).
num: 5
paragraphs: — The Act of 2006 is amended by inserting the following section after section 71:
“Offence of directing a criminal organisation.
71A.— (1) In this section—
(a) ‘ directs ’, in relation to activities, means—
(i) controls or supervises the activities, or
(ii) gives an order, instruction or guidance, or makes a request, with respect to the carrying on of the activities;
(b) references to activities include references to—
(i) activities carried on outside the State, and
(ii) activities that do not constitute an offence or offences.
(2) A person who directs, at any level of the organisation’s structure, the activities of a criminal organisation is guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.
(3) Any statement made orally, in writing or otherwise, or any conduct, by the defendant implying or leading to a reasonable inference that he or she was at a material time directing the activities of a criminal organisation shall, in proceedings for an offence under this section, be admissible as evidence that the defendant was doing such at that time.
(4) In proceedings under this section, the court or the jury, as the case may be, in determining whether an offence under this section has been committed, may, in addition to any other relevant evidence, also consider—
(a) any evidence of a pattern of behaviour on the part of the defendant consistent with his or her having directed the activities of the organisation concerned at the material time, and
(b) without limiting paragraph (a) or subsection (3)—
(i) whether the defendant has received any benefit from the organisation concerned, and
(ii) evidence as to the possession by the defendant of such articles or documents or other records as would give rise to a reasonable suspicion that such articles, documents or other records were in his or her possession or control for a purpose connected with directing the activities of the organisation concerned.
(5) Any document or other record emanating or purporting to emanate from the organisation concerned from which there can be inferred—
(a) either—
(i) the giving, at the time concerned, of an instruction, order or guidance by the defendant to any person involved in the organisation, or
(ii) the making, at that time, by the defendant of a request of a person so involved,
or
(b) the seeking, at that time, by a person so involved of assistance or guidance from the defendant,
shall, in proceedings for an offence under this section, be admissible as evidence that the defendant was directing the activities of the organisation concerned at the material time.
(6) In this section ‘ document or other record ’ has the same meaning as it has in section 71B.”.
num: 6
paragraphs: — The Act of 2006 is amended by substituting the following section for section 72:
“Offence to participate in, or contribute to, certain activities.
num: 72
paragraphs: — (1) A person is guilty of an offence if, with knowledge of the existence of the organisation referred to in this subsection, the person participates in or contributes to any activity (whether constituting an offence or not)—
(a) intending either to—
(i) enhance the ability of a criminal organisation or any of its members to commit, or
(ii) facilitate the commission by a criminal organisation or any of its members of,
a serious offence, or
(b) being reckless as to whether such participation or contribution could either—
(i) enhance the ability of a criminal organisation or any of its members to commit, or
(ii) facilitate the commission by a criminal organisation or any of its members of,
a serious offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 15 years or both.
(3) The reference in subsection (1) to the commission of a serious offence includes a reference to the doing of an act in a place outside the State that constitutes a serious offence under the law of that place and which act would, if done in the State, constitute a serious offence.
(4) In proceedings for an offence under this section it shall not be necessary for the prosecution to prove—
(a) that the criminal organisation concerned or any of its members actually committed, as the case may be—
(i) a serious offence in the State, or
(ii) a serious offence under the law of a place outside the State where the act constituting the offence would, if done in the State, constitute a serious offence,
(b) that the participation or contribution of the defendant actually—
(i) enhanced the ability of the criminal organisation concerned or any of its members to commit, or
(ii) facilitated the commission by it or any of its members of,
a serious offence, or
(c) knowledge on the part of the defendant of the specific nature of any offence referred to in subsection (1)(a) or (b).
(5) In determining whether a person participates in or contributes to an activity referred to in subsection (1), the court may consider, inter alia, whether the person—
(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organisation concerned, or
(b) receives any benefit from the criminal organisation concerned.
(6) In proceedings for an offence under this section, it shall be presumed, until the contrary is shown, that the participation or contribution (the ‘ relevant act ’) of the defendant referred to in subsection (1) was engaged in or made with the state of mind on the defendant’s part referred to in paragraph (a) or (b) of that subsection if the circumstances under which the relevant act was committed—
(a) involved either—
(i) the possession by the defendant, whilst in the presence of one or more other persons, of any article or item referred to in the Table to this section, or
(ii) there being present in (or, in the case of a false registration plate referred to in paragraph 8 of that Table, present in or affixed to) any vehicle—
(I) the use of which appears connected with the relevant act, and
(II) of which the defendant and one or more other persons were occupants on or about the date of commission of the relevant act,
any such article or item,
and
(b) those circumstances are such as give rise to a reasonable suspicion that the defendant's state of mind was as aforesaid at the time of the relevant act's commission.
Table
num: 1
paragraphs: Any balaclava, boiler suit or other means of disguise or impersonation, including any article of Garda uniform or any equipment supplied to a member of the Garda SÃ­ochÃ¡na or imitation thereof.
num: 2
paragraphs: Any firearm (within the meaning of section 1 of the Firearms Act 1925 ), ammunition for a firearm or device that appears to the ordinary observer so realistic as to make it indistinguishable from a firearm.
num: 3
paragraphs: Any knife to which section 9(1) of the Firearms and Offensive Weapons Act 1990 applies, weapon of offence within the meaning of section 10(2) of that Act or weapon to which section 12 of that Act applies.
num: 4
paragraphs: Any implement for burglary or other article or item for gaining access to any premises or other structure without the permission of the owner or occupier thereof, including any key or card that has been stolen or any access code unlawfully procured.
num: 5
paragraphs: Any plan of any premises or other structure unrelated to any lawful activity, trade or purpose being pursued or engaged in by one or more of the persons referred to in subsection (6)(a).
num: 6
paragraphs: Any controlled drug (within the meaning of the Misuse of Drugs Act 1977 ).
num: 7
paragraphs: Any substantial amounts, in cash, of any currency unrelated to any lawful activity, trade, transaction or purpose being pursued or engaged in by one or more of the persons referred to in subsection (6)(a).
num: 8
paragraphs: Any false vehicle registration plate, that is to say, any plate purporting to be a plate for a mechanically propelled vehicle registered under section 131 of the Finance Act 1992 and displaying an identification mark other than that duly assigned by the Revenue Commissioners under Chapter IV of Part II of that Act and regulations thereunder.
num: 9
paragraphs: Any article or item for making a counterfeit of any currency note or coin or making a counterfeit or otherwise for making a forgery of any credit or debit card.
num: 10
paragraphs: Any article or item for making copies of any work, being an article or item of a design enabling, and held in circumstances indicating that it would likely be used for, the making, on a substantial scale, of infringing copies (within the meaning of Part II of the Copyright and Related Rights Act 2000 ) of the work without the copyright owner's consent.
num: 11
paragraphs: Any other article or item prescribed for the purposes of subsection (6).”.
num: 7
paragraphs: — The Act of 2006 is amended by inserting the following section after section 71A (inserted by section 5 ):
“Provisions with respect to proof of criminal organisation’s existence.
71B.— (1) In proceedings under this Part the opinion of—
(a) any member of the Garda SÃ­ochÃ¡na, or
(b) any former member of the Garda SÃ­ochÃ¡na,
who appears to the Court to possess the appropriate expertise (in this section referred to as the ‘ appropriate expert’ ) shall, subject to section 74B, be admissible in evidence in relation to the issue as to the existence of a particular criminal organisation.
(2) In subsection (1) ‘ expertise ’ means experience, specialised knowledge or qualifications.
(3) Without limiting the matters that can properly be taken into account, in the formation of such opinion, by the appropriate expert, it shall be permissible for that expert, in forming the opinion referred to in subsection (1), to take into account any previous convictions for arrestable offences of persons believed by that expert to be part of the organisation to which the opinion relates.
(4) Without prejudice to subsection (1), in proceedings under this Part the following shall be admissible as evidence that a particular group constitutes a criminal organisation—
(a) any document or other record emanating or purporting to emanate from the group or created or purporting to be created by the defendant—
(i) from which the group’s existence as a criminal organisation can be inferred;
(ii) from which the commission or facilitation by the group of a serious offence or its engaging in any activity in relation thereto can be inferred; or
(iii) that uses or makes reference to a name, word, symbol or other representation that identifies the group as a criminal organisation or from which name, word, symbol or other representation it can be inferred that it is such an organisation,
(b) the provision by a group of 3 or more persons of a material benefit to the defendant (or a promise by such a group to provide a material benefit to the defendant), which provision or promise is not made in return for a lawful act performed or to be performed by the defendant.
(5) In subsection (4) ‘ document or other record ’ includes, in addition to a document or other record in writing—
(a) a disc, tape, sound-track or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,
(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and
(c) a photograph.”.
num: 8
paragraphs: — (1) It is hereby declared that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to an offence under each of the following provisions of Part 7 of the Act of 2006, namely, sections 71A, 72, 73 and 76.
num: 9
paragraphs: — The Act of 2006 is amended by inserting the following section after section 72:
“Offences under this Part: inferences that may be drawn.
72A.— (1) Where in any proceedings against a person for an offence under this Part evidence is given that the defendant at any time before he or she was charged with the offence, on being questioned by a member of the Garda SÃ­ochÃ¡na in relation to the offence, failed to answer any question material to the investigation of the offence, then the court in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the defendant is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely or mainly on an inference drawn from such a failure.
(2) Subsection (1) shall not have effect unless—
(a) the defendant was told in ordinary language when being questioned what the effect of such a failure might be, and
(b) the defendant was afforded a reasonable opportunity to consult a solicitor before such a failure occurred.
(3) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the defendant in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged, in so far as evidence thereof would be admissible apart from this section, or
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the defendant which could be properly drawn apart from this section.
(4) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, an answer to the question concerned was first given by the defendant.
(5) This section shall not apply in relation to the questioning of a person by a member of the Garda SÃ­ochÃ¡na unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(6) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(7) In this section ‘ any question material to the investigation of the offence’ means:
(a) a question requesting that the defendant give a full account of his or her movements, actions, activities or associations during any specified period relevant to the offence being investigated; and
(b) whichever one, or more than one, of the following is relevant to the offence being investigated—
(i) a question relating to any statement or conduct of the type referred to in section 71A(3);
(ii) a question relating to any benefit of the type referred to in section 71A(4)(b)(i) or 71B(4)(b) which the member of the Garda SÃ­ochÃ¡na concerned reasonably believes was received by the defendant or on his or her behalf;
(iii) a question relating to articles, or documents or other records, of the type referred to in section 71A(4)(b)(ii) or (5)(a);
(iv) a question relating to any document or other record of the type referred to in section 71B(4)(a)—
(I) created or purporting to be created by the defendant, or
(II) found in the possession of the defendant on or about the time of his or her arrest or found on foot of a lawful search of any premises or vehicle occupied by the defendant;
(v) a question relating to the suspected use by the defendant in a document of, or the suspected reference by him or her in a document to, a name, word, symbol or other representation of the type referred to in section 71B(4)(a)(iii);
(vi) a question relating to—
(I) the possession by the defendant, or
(II) the presence in a vehicle referred to in section 72(6)(a)(ii) and in the circumstances involving the defendant referred to in that provision,
of any article or item referred to in the Table to section 72:
provided that no question shall be regarded as being material to the investigation of the offence unless the member of the Garda SÃ­ochÃ¡na concerned reasonably believed that the question related to the participation of the defendant in the commission of the offence.
(8) In this section references to a failure to answer include references to the giving of an answer that is false or misleading and references to the silence or other reaction of the defendant shall be construed accordingly.
(9) This section shall not apply in relation to a failure to answer a question if the failure occurred before the commencement of section 9 of the Criminal Justice (Amendment) Act 2009.”.
num: 10
paragraphs: — Section 73 of the Act of 2006 is amended by substituting, in subsection (3), “15 years” for “10 years”.
num: 11
paragraphs: — Section 74 of the Act of 2006 is amended—
(a) by substituting the following subsection for subsection (1):
“(1) A person who does any act in a place outside the State that would, if done in the State, be an offence under section 71A or 72 and either—
(a) the act in question is done on board an Irish ship or on an aircraft registered in the State, or
(b) the person is—
(i) an individual who is an Irish citizen or ordinarily resident in the State, or
(ii) a body corporate established under the law of the State or a company within the meaning of the Companies Acts,
then the person is guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of an offence under section 71A or 72, as the case may be.”,
and
(b) by inserting the following subsection after subsection (2):
“(2A) Proceedings for—
(a) an offence under section 71 in relation to an act committed outside the State, or
(b) an offence under subsection (1),
may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.”.
num: 12
paragraphs: — The Act of 2006 is amended by inserting the following section after section 74:
“Aggravating factor: serious offence committed as part of, or in furtherance of, activities of criminal organisation.
74A.— (1) Where a court is determining the sentence to be imposed on a person for a serious offence, the fact that the offence was committed as part of, or in furtherance of, the activities of a criminal organisation shall be treated for the purpose of determining the sentence as an aggravating factor.
(2) Accordingly, the court shall (except where the sentence for the serious offence is one of imprisonment for life or where the court considers that there are exceptional circumstances justifying its not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such a factor.
(3) The sentence imposed shall not be greater than the maximum sentence permissible for the serious offence.”.
num: 13
paragraphs: — The Act of 2006 is amended by inserting the following section after section 74A (inserted by section 12 ):
“Exclusion of evidence in certain circumstances.
74B.— Nothing in this Part prevents a court, in proceedings thereunder, from excluding evidence that would otherwise be admissible if, in its opinion, the prejudicial effect of the evidence outweighs its probative value.”.
num: 14
paragraphs: — (1) The Act of 2007 is amended by inserting the following section after section 26:
“Post-release orders in cases of certain offences.
26A.— (1) Where, on or after the commencement of a scheme under subsection (10), a person (other than a person under the age of 18 years), in this section referred to as ‘ the offender ’, is convicted on indictment of—
(a) an offence under Part 7 of the Act of 2006, or
num: 15
paragraphs: — The Schedule to the Bail Act 1997 is amended, in paragraph 28A, by inserting “71A,” after “71,”.
num: 16
paragraphs: — Section 41 of the Act of 1999 is amended by substituting, in subsection (5)(b), “15 years” for “10 years”.
num: 17
paragraphs: — The Criminal Procedure Act 1967 is amended—
(a) in section 13(1), by inserting “71A,” after “or an offence under section 71,”, and
(b) in section 29(1), by inserting, in paragraph (l), “71A,” after “an offence under section 71,”.
num: 18
paragraphs: — (1) Section 7 of the Act of 1939 is amended—
(a) in subsection (1), by inserting “(whether in or outside the State)” after “Every person who”, and
(b) in subsection (2), by inserting “(whether in or outside the State)” after “Every person who”.
(2) Section 7 of the Act of 1939 is further amended by inserting the following after subsection (2):
“(3) A person shall be guilty of an offence under this section for conduct that the person engages in outside the State only if—
(a) the conduct takes place on board an Irish ship (within the meaning of section 9 of the Mercantile Marine Act 1955 ),
(b) the conduct takes place on an aircraft registered in the State,
(c) the person is an Irish citizen, or
(d) the person is ordinarily resident in the State.
(4) A person who has his principal residence in the State for the 12 months immediately preceding the commission of an offence under subsection (1) or (2) of this section is, for the purposes of subsection (3)(d) of this section, ordinarily resident in the State on the date of the commission of the offence.”.
num: 19
paragraphs: — (1) Section 7 of the Act of 1997 is amended by inserting the following subsection after subsection (1):
“(1A) Any person who, outside the State, aids, abets, counsels or procures the commission of an indictable offence in the State shall be liable to be indicted, tried and punished as a principal offender if—
(a) the person does so on board an Irish ship,
(b) the person does so on an aircraft registered in the State,
(c) the person is an Irish citizen, or
(d) the person is ordinarily resident in the State.”.
(2) Section 7 of the Act of 1997 is further amended—
(a) in subsection (2), by inserting “, whether in or outside the State,” after “any act”,
(b) by inserting the following subsection after subsection (2):
“(2A) A person shall be guilty of an offence under subsection (2) for doing an act outside the State only if—
(a) the person does so on board an Irish ship,
(b) the person does so on an aircraft registered in the State,
(c) the person is an Irish citizen, or
(d) the person is ordinarily resident in the State.”,
and
(c) by inserting the following subsections after subsection (7):
“(8) A person who has his or her principal residence in the State for the 12 months immediately preceding the commission of an offence referred to in subsection (1A) or an offence under subsection (2) is, for the purposes of subsection (1A)(d) or (in the case of an offence under subsection (2)) subsection (2A)(d), taken to be ordinarily resident in the State on the date of the commission of the offence.
(9) In this section ‘ Irish ship’ has the meaning it has in section 9 of the Mercantile Marine Act 1955 .”.
(3) Section 8 of the Act of 1997 is amended, in subsection (1), by substituting “accepts (or agrees to accept), whether in or outside the State, for not disclosing that information any consideration” for“accepts or agrees to accept for not disclosing that information any consideration”.
(4) Section 8 of the Act of 1997 is further amended—
(a) by inserting the following after subsection (1):
“(1A) A person shall be guilty of an offence under subsection (1) for conduct that the person engages in outside the State only if—
(a) the conduct takes place on board an Irish ship,
(b) the conduct takes place on an aircraft registered in the State,
(c) the person is an Irish citizen, or
(d) the person is ordinarily resident in the State.”,
and
(b) by inserting the following subsections after subsection (4):
“(5) A person who has his or her principal residence in the State for the 12 months immediately preceding the commission of an offence under subsection (1) is, for the purposes of subsection (1A)(d), ordinarily resident in the State on the date of the commission of the offence.
(6) In this section ‘ Irish ship’ has the same meaning as it has in section 7.”.
num: 20
paragraphs: — Section 41 of the Act of 1999 is amended—
(a) in subsection (1)(a), by substituting “who (whether in or outside the State) harms” for “who harms”, and
(b) by inserting the following subsections after subsection (3):
“(3A) A person shall be guilty of an offence under this section for conduct that the person engages in outside the State only if—
(a) the conduct takes place on board an Irish ship (within the meaning of section 9 of the Mercantile Marine Act 1955 ),
(b) the conduct takes place on an aircraft registered in the State,
(c) the person is an Irish citizen, or
(d) the person is ordinarily resident in the State.
(3B) A person who has his or her principal residence in the State for the 12 months immediately preceding the commission of an offence under subsection (1) is, for the purposes of subsection (3A)(d), ordinarily resident in the State on the date of the commission of the offence.”.
num: 21
paragraphs: — (1) Section 30 of the Act of 1939 is amended—
(a) by inserting the following subsection after subsection (3):
“(3A) If at any time during the detention of a person pursuant to this section a member of the Garda SÃ­ochÃ¡na, with reasonable cause, suspects that person of having committed an offence (the ‘other offence ’) referred to in subsection (1) of this section, being an offence other than the offence to which the detention relates, and—
(a) the member of the Garda SÃ­ochÃ¡na then in charge of the Garda SÃ­ochÃ¡na station, or
(b) in case the person is being detained in a place of detention, other than a Garda SÃ­ochÃ¡na station, an officer of the Garda SÃ­ochÃ¡na not below the rank of inspector who is not investigating the offence to which the detention relates or the other offence,
has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained, but nothing in this subsection authorises the detention of the person for a period that is longer than the period which is authorised by or under the other provisions of this section.”,
(b) by inserting the following subsection after subsection (4B):
“(4BA) (a) Without prejudice to paragraph (b) of this subsection, where a judge hearing an application under subsection (4) of this section is satisfied, in order to avoid a risk of prejudice to the investigation concerned, that it is desirable to do so, he may—
(i) direct that the application be heard otherwise than in public, or
(ii) exclude from the Court during the hearing all persons except officers of the Court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons as the Court may permit to remain.
(b) On the hearing of an application under subsection (4) of this section, the judge may, of his own motion or on application by the officer of the Garda SÃ­ochÃ¡na making the application under that subsection (4), where it appears that—
(i) particular evidence to be given by any member of the Garda SÃ­ochÃ¡na during the hearing (including evidence by way of answer to a question asked of the member in cross-examination) concerns steps that have been, or may be, taken in the course of any inquiry or investigation being conducted by the Garda SÃ­ochÃ¡na with respect to the suspected involvement of the person to whom the application relates, or any other person, in the commission of the offence to which the detention relates or any other offence, and
(ii) the nature of those steps is such that the giving of that evidence concerning them could prejudice, in a material respect, the proper conducting of any foregoing inquiry or investigation,
direct that, in the public interest, the particular evidence shall be given in the absence of every person, including the person to whom the application relates and any legal representative (whether of that person or the applicant), other than—
(I) the member or members whose attendance is necessary for the purpose of giving the evidence to the judge; and
(II) if the judge deems it appropriate, such one or more of the clerks of the Court as the judge determines.
(c) If, having heard such evidence given in that manner, the judge considers the disclosure of the matters to which that evidence relates would not have the effect referred to in paragraph (b)(ii) of this subsection, the judge shall direct the evidence to be re-given in the presence of all the other persons (or, as the case may be, those of them not otherwise excluded from the Court under paragraph (a) of this subsection).
(d) No person shall publish or broadcast or cause to be published or broadcast any information about an application under subsection (4) of this section other than a statement of—
(i) the fact that the application has been made by the Garda SÃ­ochÃ¡na in relation to a particular investigation, and
(ii) any decision resulting from the application.
(e) If any matter is published or broadcast in contravention of paragraph (d) of this subsection, the following persons, namely—
(i) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
(ii) in the case of any other publication, the person who publishes it, and
(iii) in the case of a broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper,
shall be guilty of an offence and shall be liable—
(I) on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months or to both, or
(II) on conviction on indictment, to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 3 years or to both.
(f) In this subsection—
‘ broadcast ’ means the transmission, relaying or distribution by wireless telegraphy, cable or the internet of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;
‘ publish ’ means publish, other than by way of broadcast, to the public or a portion of the public.
(4BB) Save where any rule of law requires such an issue to be determined by the Court, in an application under subsection (4) of this section no issue as to the lawfulness of the arrest or detention of the person to whom the application relates may be raised.
(4BC) (a) In an application under subsection (4) of this section it shall not be necessary for a member of the Garda SÃ­ochÃ¡na, other than the officer making the application, to give oral evidence for the purposes of the application and the latter officer may testify in relation to any matter within the knowledge of another member of the Garda SÃ­ochÃ¡na that is relevant to the application notwithstanding that it is not within the personal knowledge of the officer.
(b) However, the Court hearing such an application may, if it considers it to be in the interests of justice to do so, direct that another member of the Garda SÃ­ochÃ¡na give oral evidence and the Court may adjourn the hearing of the application for the purpose of receiving such evidence.”,
(c) by substituting the following subsection for subsection (4D):
“(4D) If—
(a) an application is to be made, or is made, under subsection (4) of this section for a warrant authorising the detention for a further period of a person detained pursuant to a direction under subsection (3) of this section, and
(b) the period of detention under subsection (3) of this section has not expired at the time of the arrival of the person concerned at the court house for the purposes of the hearing of the application but would, but for this subsection, expire before, or during the hearing (including, if such should occur, any adjournment of the hearing),
it shall be deemed not to expire until the final determination of the application; and, for purposes of this subsection—
(i) a certificate signed by the court clerk in attendance at the court house concerned stating the time of the arrival of the person concerned at that court house shall be evidence, until the contrary is shown, of the time of that person’s arrival there;
(ii) ‘ court house ’ includes any venue at which the hearing of the application takes place.”.
(2) Section 30A of the Act of 1939 is amended by substituting the following subsections for subsection (1):
“(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 30 of this Act and is released without any charge having been made against him, he shall not—
(a) be arrested again in connection with the offence to which the detention related, or
(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda SÃ­ochÃ¡na by whom he was arrested, suspected, or ought reasonably to have suspected, him of having committed,
except under the authority of a warrant issued by a judge of the District Court who is satisfied on information supplied on oath by a member of the Garda SÃ­ochÃ¡na not below the rank of superintendent that either of the following cases apply, namely—
(i) further information has come to the knowledge of the Garda SÃ­ochÃ¡na since the person’s release as to his suspected participation in the offence for which his arrest is sought,
(ii) notwithstanding that the Garda SÃ­ochÃ¡na had knowledge, prior to the person’s release, of the person’s suspected participation in the offence for which his arrest is sought, the questioning of the person in relation to that offence, prior to his release, would not have been in the interests of the proper investigation of the offence.
(1A) An application for a warrant under this section shall be heard otherwise than in public.”.
(3) Section 30A of the Act of 1939 is further amended, in subsection (2)(b), by substituting “(4B), (4BA), (4BB), (4BC)’’ for “(4B)’’.
num: 22
paragraphs: — (1) Section 2 of the Act of 1996 is amended—
(a) in subsection (2)(b), by substituting ‘ superintendent’ for ‘ chief superintendent’ ,
(b) by inserting the following subsections after subsection (3):
“(3A) (a) Without prejudice to paragraph (b), where a judge hearing an application under subsection (2) is satisfied, in order to avoid a risk of prejudice to the investigation concerned, that it is desirable to do so, he or she may—
(i) direct that the application be heard otherwise than in public, or
(ii) exclude from the Court during the hearing all persons except officers of the Court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons as the Court may permit to remain.
(b) On the hearing of an application under subsection (2), the judge may, of his or her own motion or on application by the officer of the Garda SÃ­ochÃ¡na making the application under subsection (2), where it appears that—
(i) particular evidence to be given by any member of the Garda SÃ­ochÃ¡na during the hearing (including evidence by way of answer to a question asked of the member in cross-examination) concerns steps that have been, or may be taken, in the course of any inquiry or investigation being conducted by the Garda SÃ­ochÃ¡na with respect to the suspected involvement of the person to whom the application relates, or any other person, in the commission of the offence to which the detention relates or any other offence, and
(ii) the nature of those steps is such that the giving of that evidence concerning them could prejudice, in a material respect, the proper conducting of any foregoing inquiry or investigation,
direct that, in the public interest, the particular evidence shall be given in the absence of every person, including the person to whom the application relates and any legal representative (whether of that person or the applicant), other than—
(I) the member or members whose attendance is necessary for the purpose of giving the evidence to the judge; and
(II) if the judge deems it appropriate, such one or more of the clerks or registrars of the Court as the judge determines.
(c) If, having heard such evidence given in that manner, the judge considers the disclosure of the matters to which that evidence relates would not have the effect referred to in paragraph (b)(ii), the judge shall direct the evidence to be re-given in the presence of all the other persons (or, as the case may be, those of them not otherwise excluded from the Court under paragraph (a)).
(d) No person shall publish or broadcast or cause to be published or broadcast any information about an application under subsection (2) other than a statement of—
(i) the fact that the application has been made by the Garda SÃ­ochÃ¡na in relation to a particular investigation, and
(ii) any decision resulting from the application.
(e) If any matter is published or broadcast in contravention of paragraph (d), the following persons, namely—
(i) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
(ii) in the case of any other publication, the person who publishes it, and
(iii) in the case of a broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper,
shall be guilty of an offence and shall be liable—
(I) on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or
(II) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.
(f) Where an offence under this subsection has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(g) Where the affairs of a body corporate are managed by its members, paragraph (f) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
(h) In this subsection—
‘ broadcast ’ means the transmission, relaying or distribution by wireless telegraphy, cable or the internet of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;
‘ publish ’ means publish, other than by way of broadcast, to the public or a portion of the public.
(3B) Save where any rule of law requires such an issue to be determined by the Court, in an application under subsection (2) no issue as to the lawfulness of the arrest or detention of the person to whom the application relates may be raised.
(3C) (a) In an application under subsection (2) it shall not be necessary for a member of the Garda SÃ­ochÃ¡na, other than the officer making the application, to give oral evidence for the purposes of the application and the latter officer may testify in relation to any matter within the knowledge of another member of the Garda SÃ­ochÃ¡na that is relevant to the application notwithstanding that it is not within the personal knowledge of the officer.
(b) However, the Court hearing such an application may, if it considers it be in the interests of justice to do so, direct that another member of the Garda SÃ­ochÃ¡na give oral evidence and the Court may adjourn the hearing of the application for the purpose of receiving such evidence.”,
(c) by substituting the following subsection for subsection (7A):
“(7A) Notwithstanding subsections (2) and (7), if—
(a) an application is to be made, or is made, under subsection (2) for a warrant authorising the detention for a further period of a person detained under that subsection, and
(b) the period of detention under that subsection has not expired at the time of the arrival of the person concerned at the court house for the purposes of the hearing of the application but would, but for this subsection, expire before, or during the hearing (including, if such should occur, any adjournment of the hearing),
it shall be deemed not to expire until the final determination of the application; and, for purposes of this subsection—
(i) a certificate signed by the court clerk or registrar in attendance at the court house concerned stating the time of the arrival of the person concerned at that court house shall be evidence, until the contrary is shown, of the time of that person’s arrival there;
(ii) ‘ court house ’ includes any venue at which the hearing of the application takes place.”.
(2) Section 4 of the Act of 1996 is amended by substituting the following subsection for subsection (1):
“(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 2 and is released without any charge having been made against him or her, he or she shall not—
(a) be arrested again in connection with the offence to which the detention related, or
(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda SÃ­ochÃ¡na by whom he or she was arrested suspected, or ought reasonably to have suspected, him or her of having committed,
except on the authority of a warrant issued by a judge of the Circuit Court or the District Court who is satisfied on information supplied on oath by a member of the Garda SÃ­ochÃ¡na not below the rank of superintendent that either of the following cases apply, namely—
(i) further information has come to the knowledge of the Garda SÃ­ochÃ¡na since the person’s release as to the person’s suspected participation in the offence for which his or her arrest is sought,
(ii) notwithstanding that the Garda SÃ­ochÃ¡na had knowledge, prior to his or her release, of the person’s suspected participation in the offence for which his or her arrest is sought, the questioning of the person in relation to that offence, prior to his or her release, would not have been in the interests of the proper investigation of the offence.
(1A) An application for a warrant under this section shall be heard otherwise than in public.”.
(3) Section 5 of the Act of 1996 is amended by inserting “4(8B),” after “4(8A),”.
(4) Section 11 of the Act of 1996 is repealed and, accordingly, sections 2, 3, 4, 5 and 6 of that Act (being the sections to which that section 11 related) shall continue in operation indefinitely.
num: 23
paragraphs: — (1) Section 50 of the Act of 2007 is amended in subsection (1)—
(a) by substituting, in paragraph (c), “Act of 1925,” for “Act of 1925, or”,
(b) by substituting, in paragraph (d), “firearm, or” for “firearm.”, and
(c) by inserting the following paragraph after paragraph (d):
“(e) an offence under Part 7 of the Criminal Justice Act 2006 .”.
(2) Section 50 of the Act of 2007 is further amended—
(a) by inserting the following subsection after subsection (4):
“(4A) (a) Without prejudice to paragraph (b), where a judge hearing an application under subsection (3) is satisfied, in order to avoid a risk of prejudice to the investigation concerned, that it is desirable to do so, he or she may—
(i) direct that the application be heard otherwise than in public, or
(ii) exclude from the Court during the hearing all persons except officers of the Court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons as the Court may permit to remain.
(b) On the hearing of an application under subsection (3), the judge may, of his or her own motion or on application by the member of the Garda SÃ­ochÃ¡na making the application under subsection (3), where it appears that—
(i) particular evidence to be given by any member of the Garda SÃ­ochÃ¡na during the hearing (including evidence by way of answer to a question asked of the member in cross-examination) concerns steps that have been, or may be, taken in the course of any inquiry or investigation being conducted by the Garda SÃ­ochÃ¡na with respect to the suspected involvement of the person to whom the application relates, or any other person, in the commission of the offence to which the detention relates or any other offence, and
(ii) the nature of those steps is such that the giving of that evidence concerning them could prejudice, in a material respect, the proper conducting of any foregoing inquiry or investigation,
direct that, in the public interest, the particular evidence shall be given in the absence of every person, including the person to whom the application relates and any legal representative (whether of that person or the applicant), other than—
(I) the member or members whose attendance is necessary for the purpose of giving the evidence to the judge; and
(II) if the judge deems it appropriate, such one or more of the clerks or registrars of the Court as the judge determines.
(c) If, having heard such evidence given in that manner, the judge considers the disclosure of the matters to which that evidence relates would not have the effect referred to in paragraph (b)(ii), the judge shall direct the evidence to be re-given in the presence of all the other persons (or, as the case may be, those of them not otherwise excluded from the Court under paragraph (a)).
(d) No person shall publish or broadcast or cause to be published or broadcast any information about an application under this section other than a statement of—
(i) the fact that the application has been brought by a named person in relation to a particular investigation, and
(ii) any decision resulting from the application.
(e) If any matter is published or broadcast in contravention of paragraph (d), the following persons, namely—
(i) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
(ii) in the case of any other publication, the person who publishes it, and
(iii) in the case of a broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper,
shall be guilty of an offence and shall be liable—
(I) on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or
(II) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.
(f) Where an offence under this subsection has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(g) Where the affairs of a body corporate are managed by its members, paragraph (f) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
(h) In this subsection—
‘ broadcast ’ means the transmission, relaying or distribution by wireless telegraphy, cable or the internet of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;
‘ publish ’ means publish, other than by way of broadcast, to the public or a portion of the public.
(4B) Save where any rule of law requires such an issue to be determined by the Court, in an application under subsection (3) no issue as to the lawfulness of the arrest or detention of the person to whom the application relates may be raised.
(4C) (a) In an application under subsection (3) it shall not be necessary for a member of the Garda SÃ­ochÃ¡na, other than the member making the application, to give oral evidence for the purposes of the application and the latter member may testify in relation to any matter within the knowledge of another member of the Garda SÃ­ochÃ¡na that is relevant to the application notwithstanding that it is not within the personal knowledge of the member.
(b) However, the Court hearing such an application may, if it considers it to be in the interests of justice to do so, direct that another member of the Garda SÃ­ochÃ¡na give oral evidence and the Court may adjourn the hearing of the application for the purpose of receiving such evidence.”,
(b) by substituting the following subsection for subsection (9):
“(9) Notwithstanding subsections (3) and (8), if—
(a) an application is to be made, or is made, under subsection (3) for a warrant authorising the detention for a further period of a person detained under that subsection, and
(b) the period of detention under that subsection has not expired at the time of the arrival of the person concerned at the court house for the purposes of the hearing of the application but would, but for this subsection, expire before, or during the hearing (including, if such should occur, any adjournment of the hearing),
it shall be deemed not to expire until the final determination of the application; and, for purposes of this subsection—
(i) a certificate signed by the court clerk or registrar in attendance at the court house concerned stating the time of the arrival of the person concerned at that court house shall be evidence, until the contrary is shown, of the time of that person’s arrival there;
(ii) ‘court house’ includes any venue at which the hearing of the application takes place.”.
(3) Section 51 of the Act of 2007 is amended by substituting the following subsections for subsection (1):
“(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 50 and is released without any charge having been made against him or her, he or she shall not—
(a) be arrested again in connection with the offence to which the detention related, or
(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda SÃ­ochÃ¡na by whom he or she was arrested suspected, or ought reasonably to have suspected him or her, of having committed,
except on the authority of a warrant issued by a judge of the Circuit Court or the District Court who is satisfied on information supplied on oath by a member of the Garda SÃ­ochÃ¡na not below the rank of superintendent that either of the following cases apply, namely:
(i) further information has come to the knowledge of the Garda SÃ­ochÃ¡na since the person’s release as to his or her suspected participation in the offence for which his or her arrest is sought,
(ii) notwithstanding that the Garda SÃ­ochÃ¡na had knowledge, prior to the person’s release, of the person’s suspected participation in the offence for which his or her arrest is sought, the questioning of the person in relation to that offence, prior to his or her release would not have been in the interests of the proper investigation of the offence.
(1A) An application for a warrant under this section shall be heard otherwise than in public.”.
(4) Section 52 of the Act of 2007 is amended by inserting “4(8B),” after “4(8A),”.
num: 24
paragraphs: — (1) Section 4 of the Act of 1984 is amended—
(a) by inserting the following subsection after subsection (8A):
“(8B) (a) Where a medical practitioner—
(i) has, at the request of a member of the Garda SÃ­ochÃ¡na, assessed the condition of a person detained pursuant to subsection (2), and
(ii) certifies that the person, although the person’s condition is not such as to require the person’s hospitalisation, is unfit for any questioning for the purpose of the investigation for a specified period,
no questioning of the person shall take place during that period and that period shall be excluded in reckoning a period of detention permitted by this section.
(b) The period that may be specified in a certificate provided under paragraph (a) by a medical practitioner shall not exceed 6 hours.
(c) A certificate may be provided under paragraph (a) on one occasion only in respect of the particular person detained pursuant to subsection (2).”,
and
(b) in subsection (9) by substituting “, (8A) or (8B)” for “or (8A)”.
(2) Section 9 of the Act of 1984 is amended by inserting “4(8B),” after “4(8A),”.
(3) Section 10 of the Act of 1984 is amended by substituting the following subsection for subsection (1):
“(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 4 and is released without any charge having been made against him, he shall not—
(a) be arrested again in connection with the offence to which the detention related, or
(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda SÃ­ochÃ¡na by whom he was arrested suspected, or ought reasonably to have suspected him of having committed,
except on the authority of a warrant issued by a judge of the District Court who is satisfied on information supplied on oath by a member of the Garda SÃ­ochÃ¡na not below the rank of superintendent that either of the following cases apply, namely:
(i) further information has come to the knowledge of the Garda SÃ­ochÃ¡na since the person’s release as to his suspected participation in the offence for which his arrest is sought, or
(ii) notwithstanding that the Garda SÃ­ochÃ¡na had knowledge, prior to the person’s release, of the person’s suspected participation in the offence for which his arrest is sought, the questioning of the person in relation to that offence, prior to his release, would not have been in the interests of the proper investigation of the offence.
A person arrested under that authority shall be dealt with pursuant to section 4.
(1A) An application for a warrant under this section shall be heard otherwise than in public.”.
num: 25
paragraphs: — The Offences against the State (Amendment) Act 1998 is amended by substituting the following section for section 6:
“Directing an unlawful organisation.
num: 6
paragraphs: — (1) In this section—
(a) ‘ directs ’, in relation to activities, means—
(i) controls or supervises the activities, or
(ii) gives an order, instruction or guidance, or makes a request, with respect to the carrying on of the activities;
(b) ‘ serious offence ’ means an offence for which a person may be punished by imprisonment for a term of 4 years or more;
(c) ‘ unlawful organisation ’ means an organisation in respect of which a suppression order has been made under section 19 of the Act of 1939;
(d) references to activities include references to—
(i) activities carried on outside the State, and
(ii) activities that do not constitute an offence or offences.
(2) A person who directs, at any level of the organisation’s structure, the activities of an unlawful organisation shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.
(3) Any statement made orally, in writing or otherwise, or any conduct, by the defendant implying or leading to a reasonable inference that he or she was at a material time directing the activities of an unlawful organisation shall, in proceedings for an offence under this section, be admissible as evidence that the defendant was doing such at that time.
(4) In proceedings under this section, the court or the jury, as the case may be, in determining whether an offence under this section has been committed, may, in addition to any other relevant evidence, also consider—
(a) any evidence of a pattern of behaviour on the part of the defendant consistent with his or her having directed the activities of the organisation concerned at the material time, and
(b) without limiting paragraph (a) or subsection (3)—
(i) whether the defendant has received any benefit from the organisation concerned, and
(ii) evidence as to the possession by the defendant of such articles or documents or other records as would give rise to a reasonable suspicion that such articles, documents or other records were in his or her possession or control for a purpose connected with directing the activities of the organisation concerned.
(5) Any document or other record emanating or purporting to emanate from the organisation concerned from which there can be inferred—
(a) either—
(i) the giving, at the time concerned, of an instruction, order or guidance by the defendant to any person involved in the organisation, or
(ii) the making, at that time, by the defendant of a request of a person so involved,
or
(b) the seeking, at that time, by a person so involved of assistance or guidance from the defendant,
shall, in proceedings for an offence under this section, be admissible as evidence that the defendant was directing the activities of the organisation concerned at the material time.
(6) The expression ‘ other record ’ in this section shall receive a like construction to that which is provided for by section 2 of the Act of 1939 with respect to the expression ‘ document ’.’’.
num: 26
paragraphs: — An application under any enactment to a court, or a judge of a court, for a search warrant shall be heard otherwise than in public.