Next (SCHEDULE Text of Council of Europe Agreement on Illicit Traffic by Sea Implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Strasbourg on 31 January 1995)

18 2003

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Number 18 of 2003


CRIMINAL JUSTICE (ILLICIT TRAFFIC BY SEA) ACT 2003


ARRANGEMENT OF SECTIONS

Section

1.

Interpretation.

2.

Exercise of powers by enforcement officers.

3.

Convention states party to the Agreement.

4.

Communication by master of vessel.

5.

Arrested person to be brought before High Court.

6.

Remand of arrested person.

7.

Request for surrender.

8.

Certification of surrender request.

9.

Committal or release of arrested person.

10.

Powers of adjournment and remand.

11.

Nomination of judge.

12.

Immunity of foreign officials.

13.

Offences against foreign officials.

14.

Restriction on arrest and proceedings.

15.

Suspension of proceedings.

16.

Removal of detained person to hospital or other place.

17.

Surrender of persons.

18.

Surrender of vessels and any thing seized.

19.

Time lapse before surrender.

20.

Release if not conveyed out of State.

21.

Release by order of Minister.

22.

Capital punishment.

23.

Custodial sentence not completed.

24.

Ireland as State seeking to exercise preferential jurisdiction.

25.

Evidence and presumptions.

26.

Expenses.

27.

Compensation.

28.

Amendment of Criminal Justice Act 1994.

29.

Short title and commencement.

SCHEDULE

Text of Council of Europe Agreement on Illicit Traffic by Sea Implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Strasbourg on 31 January 1995


Acts Referred to

Criminal Justice Act 1960

1960, No. 27

Criminal Justice Act 1994

1994, No. 15

Maritime Jurisdiction Acts 1959 to 1988

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Number 18 of 2003


CRIMINAL JUSTICE (ILLICIT TRAFFIC BY SEA) ACT 2003


AN ACT TO GIVE EFFECT TO THE COUNCIL OF EUROPE AGREEMENT ON ILLICIT TRAFFIC BY SEA IMPLEMENTING ARTICLE 17 OF THE UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, TO AMEND THE CRIMINAL JUSTICE ACT 1994 AND TO PROVIDE FOR RELATED MATTERS.

[23rd June, 2003]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Interpretation.

1. —(1) In this Act except when the context otherwise requires—

“Act of 1994” means the Criminal Justice Act 1994 ;

“Agreement” means the Council of Europe Agreement on Illicit Traffic by Sea implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Strasbourg on 31 January 1995;

“Convention state” has the meaning given to it in the Act of 1994;

“drug trafficking offence” has the meaning given to it in the Act of 1994;

“enforcement officer” has the meaning given to it in the Act of 1994;

“Minister” means the Minister for Justice, Equality and Law Reform;

“outer limit of the territorial seas” has the meaning given to that expression by the Maritime Jurisdiction Acts 1959 to 1988;

“territory of the State” includes a vessel registered in the State;

“vessel” means a ship or other floating craft of any description and includes a hovercraft or submersible craft.

(2) In this Act, unless the contrary intention appears, a reference to—

(a) a section, Part or Schedule is a reference to a section or Part of, or Schedule to, this Act,

(b) a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, and

(c) an enactment includes a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act.

(3) For convenience of reference, the text of the Agreement in the English language is set out in the Schedule.

Exercise of powers by enforcement officers.

2. —For the purposes of this Act, the powers conferred on an enforcement officer by the Act of 1994 shall not be exercised outside the outer limit of the territorial seas of the State except with the authority of the Minister for Foreign Affairs as provided in section 35(2) of the Act of 1994.

Convention states party to the Agreement.

3. —(1) The Minister for Foreign Affairs may by order declare that any state specified in the order is a Convention state which is a party to the Agreement.

(2) An order that is in force under subsection (1) shall be evidence that any state specified in the order is a Convention state which is a party to the Agreement.

(3) The Minister for Foreign Affairs may by order amend or revoke an order under this section including an order under this subsection.

(4) An order under this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas.

Communication by master of vessel.

4. —(1) Subject to subsection (2), the master of a vessel which—

(a) is registered in a Convention state which is a party to the Agreement, and

(b) is boarded by an enforcement officer outside the outer limit of the territorial seas of the State,

shall be entitled to communicate with the authorities of the Convention state concerned and the owner or operator of the vessel for the purpose of notifying them that the vessel has been boarded.

(2) An enforcement officer may prevent or delay communication under subsection (1) if he or she is satisfied that such communication would obstruct the investigation of an offence.

Arrested person to be brought before High Court.

5. —Where—

(a) a vessel registered in a Convention state which is a party to the Agreement—

(i) is arrested outside the outer limit of the territorial seas of the State, and

(ii) is taken by an enforcement officer to a port in the State,

and

(b) a person on board the vessel is arrested by the enforcement officer by virtue of his or her powers under the First Schedule to the Act of 1994,

the person shall be brought before the High Court as soon as possible, unless there are no longer reasonable grounds for suspecting that the person has committed the offence for which he or she was arrested, in which case the person shall be released forthwith.

Remand of arrested person.

6. —Where a person is brought before the High Court under section 5 , and the Court is satisfied that the person was lawfully arrested by an enforcement officer in the exercise of his or her powers under the Act of 1994, the Court shall make an order remanding the person pending the production of a certificate referred to in section 8 or the release of the person in accordance with an order under section 21 .

Request for surrender.

7. —(1) A Convention state which is a party to the Agreement may make a request to the Minister in accordance with Article 15 of the Agreement for the surrender of—

(a) a person who has been arrested,

(b) a vessel which has been detained, or

(c) anything which has been seized from a vessel and retained,

by an enforcement officer in the exercise of his or her powers under the Act of 1994.

(2) A request may be transmitted by facsimile transmission or other electronic means.

Certification of surrender request.

8. —On receiving a request made in accordance with section 7 for the surrender of a person, the Minister shall certify that the request has been duly made.

Committal or release of arrested person.

9. —(1) Where a person who has been remanded under section 6 is before the High Court and the Court is satisfied that

(a) a request under the Agreement for the surrender of the person has been duly made, and

(b) the original or a certified copy of a warrant for the arrest of the person, or other order having the same effect, issued by a judicial authority of the requesting Convention state has been produced,

the Court shall make an order committing the person to prison (or, if he or she is not more than 21 years of age, to a remand institution) there to await the order of the Minister for his or her surrender.

(2) The Court on making the order shall—

(a) inform the person to whom it relates that he or she will not be surrendered, except with his or her consent, until the expiry of 15 days after the committal date.

(b) inform the person of the provisions of section 4.2° of Article 40 of the Constitution (which relates to the making of a complaint to the Court by or on behalf of any person alleging that that person is unlawfully detained),

(c) inform the person that he or she may, if not surrendered, be liable to proceedings in the State arising out of the circumstances which led to or followed the arrest, and

(d) cause a certificate of the committal to be sent forthwith to the Minister.

(3) Where the person referred to in subsection (1) is not committed under that subsection, the Court shall order that he or she shall be released.

(4) No appeal shall lie against an order of the High Court under this section other than an appeal on a point of law to the Supreme Court.

(5) Sections 10 and 11 of the Criminal Justice Act 1960 shall apply to a person committed to a remand institution under this section.

Powers of adjournment and remand.

10. —The High Court may, in relation to a person brought before it under this Act, exercise all its powers of adjournment and remand, including, but not limited to, the powers in that respect which the Court has in relation to a person sent forward to it for trial.

Nomination of judge.

11. —The President of the High Court may nominate from time to time one or more judges of the Court, including himself or herself, to sit as soon as may be and from time to time as appears necessary so as to enable the requirements of this Act and the Agreement to be complied with.

Immunity of foreign officials.

12. —A person acting for or on behalf of a Convention state which is a party to the Agreement shall not be liable in any criminal proceedings in the State for anything done in the purported exercise of powers in relation to an Irish vessel

(a) on the authority of the Minister for Foreign Affairs under section 35(4) of the Act of 1994, or

(b) under an agreement referred to in section 35(5) of that Act.

Offences against foreign officials.

13. —Where a person acting for or on behalf of a Convention state which is a party to the Agreement exercises powers in relation to an Irish vessel—

(a) on the authority of the Minister for Foreign Affairs under section 35(4) of the Act of 1994, or

(b) under an agreement referred to in section 35(5) of that Act,

any person who does or fails to do anything in relation to that person which, if done or not done in relation to an enforcement officer, would constitute an offence is guilty of that offence, and section 36 (jurisdiction and prosecutions in relation to offences on ships) of the Act of 1994 shall apply and have effect accordingly, with any necessary modifications.

Restriction on arrest and proceedings.

14. —(1) Where a court or the Minister orders the release of a person who has been arrested, or of a vessel or thing which has been detained or retained, outside the outer limit of the territorial seas of the State, the release shall, subject to this Act and the Agreement, not of itself prejudice the commencement of proceedings in the State against that person or in relation to that vessel or thing in connection with the drug trafficking offence concerned or any other offence arising from the circumstances leading to or following the arrest, detention or retention.

(2) A person on board a vessel—

(a) which is registered in a Convention state which is a party to the Agreement, and

(b) in relation to which the powers conferred on an enforcement officer by the First Schedule to the Act of 1994 are exercised,

shall not be liable to be arrested or proceeded against for an offence, other than the drug trafficking offence with respect to which the powers are exercised or any offence in relation to an enforcement officer (including an offence under paragraph 9 of the First Schedule to the Act of 1994), unless—

(i) that Convention state gives its consent, or

(ii) the offence is committed by the person after he or she has been taken into the territory of the State.

(3) A person on board a vessel—

(a) which is registered in a Convention state which is a party to the Agreement, and

(b) in relation to which the powers conferred on an enforcement officer by the First Schedule to the Act of 1994 are exercised for a drug trafficking offence,

shall not be liable to be arrested or proceeded against in the State for that offence where the person is released under section 21 (d).

(4) References in subsections (2) and (3) to the exercise of powers by an enforcement officer are to the exercise of those powers outside the outer limit of the territorial seas of the State.

Suspension of proceedings.

15. —(1) The High Court shall, on the application of the Minister, order the suspension of any proceedings commenced in any court in the State if it is satisfied that the suspension is necessary to give effect to the obligations of the State under paragraph 3 of Article 14 of the Agreement.

(2) Where it orders that proceedings be suspended, the High Court may make such other orders as are appropriate to give effect to the application by the Minister, including the revocation of any warrant of arrest issued in connection with the proceedings.

(3) For the purpose of considering an application under subsection (1), the High Court may order the adjournment of the proceedings for such period or periods, and on such conditions, as it thinks fit.

Removal of detained person to hospital or other place.

16. —The Minister may by order direct that a person in custody under this Act be removed to a hospital or other place if the Minister thinks it necessary to do so in the interests of the person's health and the person, while in or in transit to or from the hospital or other place, shall continue to be in the like custody.

Surrender of persons.

17. —(1) The Minister may by order direct that a person who has been committed under section 9 , other than a person—

(a) who has been released by an order of the High Court under Article 40.4.2° of the Constitution or on the determination of an appeal from an order under that provision,

(b) who has been released on the determination by the Supreme Court of an appeal on a point of law,

(c) who has been released by order of the Minister under section 21 , or

(d) whose surrender has been refused under section 22 ,

be surrendered to such person as in the Minister's opinion is duly authorised by the requesting Convention state to receive him or her.

(2) Any person to whom an order under subsection (1) directs a person to be surrendered may receive, hold in custody and convey out of the State the person so surrendered and, if that person escapes from the custody to which he or she has been surrendered, he or she shall be liable to be retaken in the same manner as any person who escapes from lawful custody.

(3) An order under subsection (1) which is made in respect of a person who is subject to a sentence of a court in the State, may include a provision authorising the return of that person to the State in accordance with arrangements made by the Minister with—

(a) the court or tribunal exercising criminal jurisdiction in the Convention state concerned or a prosecuting authority in that state, or

(b) any other authority in that state that appears to the Minister to have the function of making such arrangements.

Surrender of vessels and any thing seized.

18. —(1) Where a vessel registered in a Convention state which is a party to the Agreement is taken by an enforcement officer to a port in the State and the vessel is detained or anything on the vessel is seized as evidence, and the Minister receives from that state a request under Article 15 of the Agreement for—

(a) the surrender of the vessel,

(b) the surrender of any thing seized from the vessel, or

(c) the surrender of both the vessel and any such thing.

the Minister may, if satisfied that the request is in accordance with the Agreement, by order direct that the vessel or thing, or both the vessel and thing, as the case may be, be surrendered to such person as in the Minister's opinion is duly authorised by the requesting Convention state to receive it.

(2) Any person to whom an order under subsection (1) directs a vessel or thing to be surrendered may receive, hold in custody and convey out of the State the vessel or thing so surrendered.

Time lapse before surrender.

19. —(1) A person committed under section 9 shall not, except with his or her consent given before the High Court, be surrendered under the Agreement until—

(a) the expiry of 15 days from the date of committal, or

(b) the conclusion of any appeal proceedings brought by or on behalf of that person,

whichever is the later.

(2) In this section, “appeal proceedings” means proceedings relating to—

(a) a complaint under Article 40.4.2° of the Constitution (including proceedings on appeal from a decision on that complaint), or

(b) an appeal on a point of law to the Supreme Court.

Release if not conveyed out of State.

20. —(1) An application may be made to the High Court for the release of a person who is awaiting surrender under this Act and who is not surrendered and conveyed out of the State within one month after—

(a) the date of that person's committal under section 9 , or

(b) the conclusion of any appeal proceedings (as defined in section 19 (2)) brought by or on behalf of that person,

whichever is the later.

(2) If satisfied that the application has been made by or on behalf of a person referred to in subsection (1) and that the Minister has been given reasonable notice of the application, the Court shall, subject to subsection (3), order that the person be released from custody under this Act.

(3) If satisfied as to the matters specified in subsection (2) and also that—

(a) the person's state of health or other circumstances beyond the control of the State or the requesting Convention state have prevented him or her from being conveyed out of the State, and

(b) it is likely that within a reasonable time those circumstances will no longer prevent the person's conveyance out of the State,

the Court may fix a period within which the person may be surrendered, and he or she shall be released from custody under this Act if not conveyed out of the State within that period.

Release by order of Minister.

21. —Where a person is remanded under section 6 or a vessel or thing is detained or retained by an enforcement officer, in the exercise of his or her powers under the Act of 1994, outside the outer limit of the territorial seas of the State and—

(a) there are no longer reasonable grounds for suspecting that the person has committed the offence in respect of which he or she has been remanded,

(b) no request has been received from the relevant Convention state for the surrender of the person, vessel or thing within 18 days of the arrest, detention or retention concerned,

(c) the relevant Convention state has given notice that it does not intend to make a request under the Agreement for the surrender of the person, vessel or thing, or

(d) the relevant Convention state has requested the release under the Agreement of the person, vessel or thing,

the Minister shall order the release of the person, vessel or thing, as the case may be, and the person, vessel or thing shall be released forthwith.

Capital punishment.

22. —Where—

(a) a Convention state which is a party to the Agreement has requested, in the exercise of its preferential jurisdiction, the surrender of a person who has been arrested under Article 10.1 of the Agreement for an offence, and

(b) the offence is punishable by death under the law of the Convention state,

the surrender of the person shall be refused unless that state gives such assurances as the Minister considers sufficient that the death penalty will not be carried out.

Custodial sentence not completed.

23. —Subject to section 14 (2), where a court or the Minister orders the release of a person who is otherwise subject to a custodial sentence of a court in the State for an offence against the law of the State—

(a) the person shall continue to be liable to complete the term of imprisonment to which he or she has been sentenced by the court in the State, and

(b) if the sentence has not expired, the person shall be transferred in custody to the place where he or she is liable to be imprisoned under that sentence.

Ireland as State seeking to exercise preferential jurisdiction.

24. —(1) This section applies where a person, vessel or thing is detained in a Convention state pursuant to an authorisation under section 35(4) of the Act of 1994 and the State is entitled to have the person, vessel or thing surrendered to it.

(2) Where the Minister receives from a Convention state a notification of the detention of a person or the seizure of a vessel or thing under Article 10.2 of the Agreement together with a summary of the evidence of any alleged drug trafficking offences in accordance with Article 13.1 of the Agreement, the Minister, after consultation with the Director of Public Prosecutions, shall decide whether the State should exercise its preferential jurisdiction with respect to the person, vessel or thing; and, if any such jurisdiction is exercised, the Director of Public Prosecutions may apply to a judge of the District Court for a warrant for the arrest of the person detained or for the handing over of the vessel or thing seized.

(3) A judge of the District Court may issue a warrant referred to in subsection (2) if satisfied that the person, vessel or thing is the subject of a notification referred to in that subsection.

(4) A warrant for any alleged offence referred to in subsection (2) may be issued, and the offence may for all incidental purposes be treated as having been committed, in any place in the State.

Evidence and presumptions.

25. —(1) In any proceedings under this Act it shall be presumed unless the contrary is proved that a request for the surrender of a person has been duly made and received where a document purporting to be a certificate under section 8 to that effect has been produced to the High Court.

(2) In any proceedings under this Act a document purporting to be a request by a Convention state which is a party to the Agreement for the surrender of a person or to have been furnished in support of such a request shall, without further proof, be admissible in evidence if it purports to be signed by a person authorised by the law of the requesting Convention state to sign the document.

(3) In any proceedings under this Act, a document purporting—

(a) to be a copy of a warrant of arrest, or other order having the same effect, issued by a judicial authority of a Convention state which is a party to the Agreement, and

(b) to have been certified to be a true copy by an officer of that authority authorised by it to so certify on its behalf,

shall, without further proof, be admissible in evidence and be presumed, until the contrary is proved, to be a true copy of the warrant or order.

(4) A document purporting to be a certificate by the Minister for Foreign Affairs and stating that he or she has received a request or authorisation from a Convention state for the exercise of powers by an enforcement officer in relation to a vessel registered in that state, or that he or she has given his or her authority for any purpose provided for in section 35 of the Act of 1994, shall be admissible in evidence in any proceedings.

(5) Where a document is admissible in evidence under this section, any document which purports to be a translation of that document shall be admissible as evidence of the translation if it is certified as correct by a person competent to do so; and a document purporting to be a certificate under this subsection shall be presumed to be such a certificate, and to be signed by a person who is competent to certify the document as correct, unless the contrary is shown.

(6) Requests, other communications and supporting documents shall be made in, or accompanied by a translation into, the Irish language or English language.

Expenses.

26. —The expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Compensation.

27. —The State shall be liable to pay compensation for any loss, damage or injury in accordance with the liability imposed by Article 26 of the Agreement.

Amendment of Criminal Justice Act 1994.

28. —The Act of 1994 is amended in the following respects:

(a) in section 3(1)—

(i) by the insertion of the following after the definition of “Minister”:

“ ‘outer limit of the territorial seas’ has the meaning given to that expression by the Maritime Jurisdiction Acts 1959 to 1988;”, and

(ii) by the substitution of the following for the definition of “ship”:

“‘ship’ includes a hovercraft or submersible craft, any vessel used in navigation and any other floating craft of any description;”,

(b) by the substitution of the following section for section 33:

“Drug traffickingoffences on ships.

33.—(1) A person is guilty of a drug trafficking offence if the person does, on an Irish ship, a ship registered in a Convention state or a ship not registered in any country or territory, any act which, if done in the State, would constitute such an offence.

(2) This section is without prejudice to section 34 of this Act.”,

(c) in section 35—

(i) by the substitution, in subsection (2) of that section, of “outer limit” for “landward limits”, and

(ii) by the insertion of the following subsections after subsection 6:

“(7) Where an enforcement officer is acting under the powers conferred by subsection (1) of this section with the authority of the Minister for Foreign Affairs given under subsection (2) of this section, any person who does or fails to do any act in relation to the officer, which if done or not done in the State in relation to another person would constitute an offence, shall be guilty of that offence.

(8) Requests under this section may be transmitted by facsimile transmission or other electronic means.”,

(d) in section 36, by the substitution, in subsection (3) of that section, of “outer limit” for “landward limits”,

(e) in paragraph 4 of the First Schedule to the Act, by the substitution for “an offence mentioned in section 33 or 34 of this Act” of “a drug trafficking offence”.

Short title and commencement.

29. —(1) This Act may be cited as the Criminal Justice (Illicit Traffic by Sea) Act 2003 .

(2) This Act shall come into operation on such day or days as the Minister may fix either generally or with reference to any particular purpose or provision.