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Order 136 - Proceeds of Crime - Financing of Terrorism - Criminal Justice (Mutual Assistance)

^[1]^[2]- Proceeds of Crime

Financing of Terrorism

Criminal Justice (Mutual Assistance)

I. Proceedings under the Proceeds of Crime Acts 1996 and 2005

1. In Part I (comprising rules 1 to 10 inclusive) of this Order:

“the Principal Act” means the Proceeds of Crime Act 1996 ;

“the Act of 2005” means the Proceeds of Crime (Amendment) Act 2005 ;

unless the context otherwise requires, words and phrases have the same meaning as in the Principal Act.

Orders under section 1B of the Principal Act

1A. ^[3] (1) Any application under section 1B of the Principal Act to discharge or vary an authorisation granted under section 1A of the Principal Act, shall be made by originating notice of motion grounded on an affidavit or affidavits sworn by or on behalf of the applicant.

(2) The originating notice of motion shall be entitled in the matter of section 1B of the Principal Act and shall name the applicant as applicant and the Chief Bureau Officer as respondent. Unless the Court abridges the time for service, notice of the application shall be given by delivering copies of the said originating notice of motion and grounding affidavit and any exhibits thereto to the respondent not later than four clear days before the return date of such originating notice of motion.

(3) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any other person mentioned in section 1B(1) of the Principal Act

Orders under section 2 of the Principal Act

2. (1) Subject to sub-rule (2), an application by a member, an authorised officer or the Bureau for an order under section 2(1) of the Principal Act shall be made by originating motion ex parte. The said originating motion shall be entitled:

“The High Court

Proceeds of Crime

In the Matter of the Proceeds of Crime Act 1996

and in the Matter of an Application affecting property alleged to be in the possession or control of [C.D.]

On the Application of [A.B.]”

and shall, in the body thereof, specify the relief sought under section 2(1) of the Principal Act.

(2) An application under section 2(1) of the Principal Act shall be grounded upon an affidavit or affidavits sworn by or on behalf of the applicant.

(3) Notwithstanding sub-rule (2), the Court may, in cases of urgency hear an application under section 2(1) of the Principal Act on oral evidence. Where any oral evidence is heard by the Court in the course of any such application ex parte, a note of such evidence shall be prepared by the applicant or the applicant’s solicitor and approved by the Court and shall unless otherwise directed by the Court, be served upon the respondent together with a copy of the order made, if any.

(4) On the hearing of any application for an order under section 2(1 of the Principal Act, the Court may give such directions as seem appropriate

(a) as to the service of any document by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(b) as to the service of any document outside the jurisdiction in accordance with Order 11.

3. Any application

(a) under section 2(3) of the Principal Act to discharge or vary an order made under section 2(1) of the Principal Act,

(b) under section 2(3A) of the Principal Act (inserted by the Act of 2005) to vary an order made under section 2(1) of the Principal Act, or

shall be made by notice of motion in the proceedings commenced by the originating motion referred to in rule 2, and may be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the respondent’s whereabouts, notice of such application shall be given by delivering copies of the said notice of motion and of any grounding affidavit and any exhibits thereto to the person referred to in section 2(6) of the Principal Act not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

Orders under section 3 of the Principal Act

4. (1) Subject to sub-rule (6), an application for an order under section 3(1) of the Principal Act shall be made by originating notice of motion grounded on an affidavit or affidavits sworn by or on behalf of the applicant.

(2) Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the respondent’s whereabouts, notice of the application shall be given by delivering copies of the said originating notice of motion and grounding affidavit and any exhibits thereto to the respondent not later than four clear days before the return date of such originating notice of motion.

(3) Save as otherwise directed by the Court, any respondent to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and grounding affidavit.

(4) Save as otherwise directed by the Court, the applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any respondent and any other person; or

(c) direct that the proceedings be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and for the conduct of the proceedings.

(6) Where an order under section 2(1) of the Principal Act has been made, an application for an order under section 3(1) of the Principal Act affecting any of the property and the person or persons to which the order made under section 2(1) of the Principal Act relates may be made by notice of motion in the proceedings commenced by the originating motion referred to in rule 2(1), provided that the originating motion shall, in the body thereof, have specified the relief sought under section 3(1) of the Principal Act. In any such case, the provisions of sub-rules (1) to (5) of this rule relating to an originating notice of motion shall apply to that notice of motion.

(7) Any originating notice of motion issued in accordance with this rule shall be entitled:

“The High Court

Proceeds of Crime

In the Matter of section 3(1) of the Proceeds of Crime Act 1996

Between

Applicant

and

Respondent”.

5. Any application

(a) under section 3(3) of the Principal Act to discharge or vary an order made under section 3(1) of the Principal Act,

(b) under section 3(3A) of the Principal Act (inserted by the Act of 2005) to vary an order made under section 3(1) of the Principal Act, or

shall be made by motion on notice, and may be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Save in the case of an application referred to in paragraph (b) or (c) of this rule where the court is satisfied that it is not reasonably possible to ascertain the respondent’s whereabouts, notice of such application shall be given by delivering copies of the notice of motion and of any grounding affidavit and any exhibits thereto to the person or (as the case may be) persons referred to in section 3(6) of the Principal Act not later than four clear days before the return date for the motion.

Orders under section 4 of the Principal Act

6. (1) An application by an applicant for an order under section 4(1) of the Principal Act shall be made by originating notice of motion grounded on an affidavit or affidavits sworn by or on behalf of the applicant. The originating motion shall be entitled:

“The High Court

Proceeds of Crime

In the Matter of section 4(1) of the Proceeds of Crime Act 1996

Between

Applicant

and

Respondent”.

(2) Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the respondent’s whereabouts, notice of the application shall be given by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the respondent, and to any other person or persons as the Court may under section 4(3) of the Principal Act direct, not later than four clear days before the return date for the originating notice of motion.

(3) Save as otherwise directed by the Court, the respondent to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and grounding affidavit.

(4) Save as otherwise directed by the Court, the applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any respondent and any other person;

(c) direct that the application be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and the conduct of the proceedings.

Orders under section 16B(2) of the Principal Act

7. (1) An application by an applicant for an order under section 16B(2) of the Principal Act (inserted by the Act of 2005) shall be made by originating notice of motion, grounded on an affidavit or affidavits sworn by or on behalf of the applicant, and shall be entitled:

“The High Court

Proceeds of Crime

In the Matter of section 16B(2) of the Proceeds of Crime Act 1996

Between

Plaintiff / Applicant

and

Defendant”.

(2) Notice of the application shall be given, unless the Court otherwise directs, by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the defendant not later than four clear days before the return date of the originating notice of motion.

(3) Save where otherwise directed by the Court, any defendant to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and grounding affidavit.

(4) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any defendant and any other person;

Other relief under the Proceeds of Crime Acts 1996 and 2005

8. (1) Save where the Court otherwise directs, any application:

(a) for any confirmation by the Court of the discharge or variation of any order made under section 2(1) of the Principal Act or order made under section 3(1) of the Principal Act relating to specified property, by reason of an order referred to in section 3(7) of the Principal Act;

(b) for an order under section 4A(1) of the Principal Act (inserted by the Act of 2005);

(d) for any relief under section 6 of the Principal Act;

(e) for the appointment of a receiver under section 7 of the Principal Act;

(f) for an order under section 9(1) of the Principal Act directing a respondent to file in the Central Office of the High Court an affidavit referred to in section 9(1) of the Principal Act, or for an order under section 16B(6)(a) of the Principal Act (inserted by the Act of 2005) directing a defendant to file in the Central Office of the High Court an affidavit referred to in section 16B(6)(a) of the Principal Act (inserted by the Act of 2005); or

(g) by a member of the Garda Síochána or an officer of customs and excise for the Court’s directions under sub-section (2) of section 15 of the Principal Act

shall be made by notice of motion in the proceedings relative to the order made under section 2(1) of the Principal Act concerned or, as the case may be, the order made under section 3(1) of the Principal Act concerned grounded upon an affidavit sworn by or on behalf of the moving party.

(2) Save where the Court otherwise directs, the moving party shall give notice of such application by delivering copies of the notice of motion and grounding affidavit and any exhibits thereto to the applicant or the respondent (or, as the case may be, the defendant), and to any other person to whom notice is required to be given, not later than four clear days before the return date for the motion.

(3) Where the Court, having appointed a receiver under section 7(1) of the Principal Act, directs the receiver to account to any person in respect of the receivership, the account shall, subject to any modifications which may be necessary or as the Court may direct, be in the Form No 20 in Appendix G and the affidavit verifying the account shall, subject to any modifications which may be necessary, be in the Form No 24 in Appendix G.

9.^[4] (1) An application for compensation under section 1C or section 16 of the Principal Act shall be made by originating notice of motion in which the person seeking compensation shall be the plaintiff and the defendants shall be:

(i) the Minister, and

(ii) in a case referred to in section 1C(1)(b) or section 16 of the Principal Act, the person on whose application the order under section 2(1) or section 3(1) of the Principal Act was refused or, as the case may be, made, or

(iii) in a case referred to in section 1C(1)(a) of the Principal Act, the Chief Bureau Officer.

(2) The originating notice of motion shall be grounded on an affidavit or affidavits sworn by or on behalf of the plaintiff and shall be entitled:

“The High Court

Proceeds of Crime

In the Matter of section 1C or, as the case may be, section 16 of the Proceeds of Crime Act 1996

Between

Plaintiff

and

Defendants”.

(3) Notice of the application shall be given, unless the Court otherwise directs, by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the defendant not later than four clear days before the initial return date of the originating notice of motion.

(4) Save where otherwise directed by the Court, any defendant to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and of any grounding affidavit.

(5) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(6) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the delivery of affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any person;

Notices

10.^[5] (1) A notice required under sub-section (1), (2), (3), (4), (5) or (6) of section 10 of the Principal Act to be given by the Registrar of the Court to the Property Registration Authority shall be given by the transmission by the Registrar of the Court to the Property Registration Authority of an attested copy of the relevant order of the Court.

(2) A notice required under sub-section (7), (8) or (9) of section 10 of the Principal Act to be given by the Registrar of the Court to the Registrar of Companies shall be given by the transmission by the Registrar of the Court to the Registrar of Companies of an attested copy of the relevant order of the Court.

II. Proceedings under the Criminal Assets Bureau Acts 1996 and 2005

11. In Part II (comprising rules 11 to 14 inclusive) of this Order:

“the Act of 1996” means the Criminal Assets Bureau Act 1996 ;

“the Act of 2005” means the Proceeds of Crime (Amendment) Act 2005 ;

unless the context otherwise requires, words and phrases have the same meaning as in the Act of 1996.

12. (1) An application to the Court by the Chief Bureau Officer for directions referred to in sub-section (7) of section 10 of the Act of 1996 shall be made by motion ex parte in the proceedings in which such directions are sought, and shall be grounded upon an affidavit sworn by or on behalf of the Chief Bureau Officer. The Court may, where it considers it just, direct that such application be made on notice to the respondent or defendant in such proceedings.

(2) The Court may, on the application of any party to proceedings referred to in sub-rule (1), if satisfied that there are reasonable grounds in the public interest to do so, vary or discharge directions given under sub-section (7) of section 10 of the Act of 1996.

13. (1) An application by the Chief Bureau Officer or an authorised officer to a judge of the High Court for an order under section 14C(1) of the Act of 1996 (inserted by the Act of 2005) may be made by originating notice of motion grounded upon an affidavit sworn by or on behalf of the moving party. The originating notice of motion shall be entitled:

“The High Court

Proceeds of Crime

In the Matter of section 14C(1) of the Criminal Assets Bureau Act 1996

Between

Applicant

and

Respondent”.

(2) Notice of the application shall, unless the Court otherwise directs be given by delivering copies of the originating notice of motion and of any grounding affidavit and any exhibits thereto to each of the trustees of the trust not later than four clear days before the return date of the originating notice of motion. The Court may direct that notice of such application be given to such other person or persons as it considers just.

(3) Save where otherwise directed by the Court, any person to whom notice of such application is required to be given may deliver a replying affidavit within two weeks of the delivery to such person of copies of the said originating notice of motion and grounding affidavit.

(4) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the further delivery of affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any person;

14. (1) An application under section 14C(4) of the Act of 1996 (inserted by the Act of 2005) by a person to whom the order relates or by a member of the Garda Síochána to vary or discharge an order made under section 14C(1) of the Act of 1996 (inserted by the Act of 2005) shall be made by motion on notice.

(2) Unless the Court otherwise directs or permits, an application referred to in this rule shall be grounded upon an affidavit sworn by or on behalf of the moving party. Notice of the motion shall be given by delivering copies of the notice of motion and grounding affidavit and any exhibits thereto to the respondent or (as the case may be) the applicant named in the originating notice of motion, not later than four clear days before the return date for the motion.

III. Proceedings under the Criminal Justice Act 1994 (as amended)

15.^[6] In Part III (comprising rules 15 to 25 inclusive) of this Order:

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

“the Act of 2005” means the Criminal Justice (Terrorist Offences) Act 2005;

“the 2017 Regulations” means the European Union (Freezing and Confiscation of Instrumentalities and Proceeds of Crime) Regulations 2017 (S.I. No. 540 of 2017);

unless the context otherwise requires, words and phrases have the same meaning as in the Act of 1994.

Confiscation orders under the Act of 1994 and related applications

16. (1) An application by the Director of Public Prosecutions for the exercise by the Court of the power conferred by sub-section (2), sub-section (4) or sub-section (5B) of section 13 of the Act of 1994 (as amended by section 27 of the Act of 2005 and Regulation 10 of the 2017 Regulations) shall be made by originating motion ex parte. The said originating motion shall be entitled:

“The High Court

In the Matter of an Application under section 13 of the Criminal Justice Act 1994”.

(2) Such application shall be grounded upon an affidavit or affidavits sworn by or on behalf of the Director of Public Prosecutions.

(3) On the hearing of any such application, the Court may give such directions as seem appropriate:

(a) as to the service of copies of the originating motion, affidavit or affidavits and any exhibits thereto on any person appearing to the Court likely to be affected by the making of a confiscation order;

(b) as to the service of copies of those documents by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(4) Where a confiscation order made on an application commenced in accordance with this rule is served upon the defendant, there shall be endorsed upon the copy of the order served upon the defendant a memorandum in the following words or to the following effect: “If at any time after payment of a sum due under the within confiscation order has become enforceable in the manner provided for by section 19(1) of the Criminal Justice Act 1994, it is reported to the High Court by the Director of Public Prosecutions that any such sum or any part thereof remains unpaid, the High Court may order that you the defendant be imprisoned for a period not exceeding that set out in the Table to section 19 of the said Act.”

17. (1) Where a confiscation order has been made, any application to the Court

(a) by the defendant or the Director of Public Prosecutions to substitute an amount under section 16 of the Act of 1994;

(b) by the defendant or the Director of Public Prosecutions to make a fresh determination of value under section 17 of the Act of 1994 (as amended by section 28 of the Act of 2005 and Regulation 11 of the 2017 Regulations) and to vary an amount under section 17 of the Act of 1994 (as so amended);

(c) by the Director of Public Prosecutions to substitute an amount under section 18 of the Act of 1994 (as amended by section 29 of the Act of 2005);

(d) by the Director of Public Prosecutions seeking an order that the defendant be imprisoned under section 19(2) of the Act of 1994; or

(e) by the Director of Public Prosecutions under section 20 of the Act of 1994 to exercise the powers conferred by sub-sections (2) to (6) of section 20 of the Act of 1994

shall be made by notice of motion in the proceedings commenced by the originating motion referred to in rule 16.

(2) Such motion shall be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Notice of such application shall be given by delivering copies of the said notice of motion and grounding affidavit and any exhibits thereto to the Director of Public Prosecutions or, as the case may be, to the defendant.

(3) Notice of such application shall be given:

(a) in the case of an application referred to in paragraph (d) of sub-rule (1), not later than 21 days before the return date for the motion;

(b) in the case of any other application referred to in sub-rule (1), not later than four clear days before the return date for the motion.

(4) In the case of an application referred to in paragraph (d) of sub-rule (1), the defendant may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the notice of motion, grounding affidavit and any exhibits thereto and the Director of Public Prosecutions may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the notice of motion referred to in this rule, the Court may, at such hearing, make such orders or give such directions as seem appropriate:

(a) for the delivery of further affidavits and for the determination of the application;

(b) in the case of an application referred to in paragraph (b) or (e) of sub-rule (1), as to the service of copies of the notice of motion, affidavit or affidavits and any exhibits thereto on any person who it appears to the Court may hold any interest in the realisable property to which the application relates.

^[7]Freezing orders under section 24 of the Act of 1994 and related orders

18.^[8](1) An application by the Director of Public Prosecutions for a freezing order under section 24 of the Act of 1994 shall be made by originating motion ex parte. The said originating motion shall be entitled:

“The High Court

In the Matter of an Application under section 24 of the Criminal Justice Act 1994”.

(2) Such application shall be grounded upon an affidavit sworn by or on behalf of the Director of Public Prosecutions.

(3) On the hearing of any such application, the Court may give such directions as seem appropriate

(a) as to the service of copies of the originating notice of motion, affidavit and any exhibits thereto on any person appearing to the Court likely to be affected by the making of a freezing order;

(b) as to the service of copies of those documents by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

19.^[9] Where a freezing order is made, the freezing order shall include the reasons for the making of the order and the Court shall give such directions as seem appropriate, which shall be recited in the order, as to service of copies of the order upon, or the giving of notice of the making and contents of the order to, any person appearing to the Court likely to be affected by the making of the freezing order.

20. (1) An application to the Court

(a) under section 24(5) of the Act of 1994 by any person affected by a freezing order to discharge or vary that freezing order in relation to any property, or

(b) under section 24(10) of the Act of 1994 for the Court’s directions as to any dealing in property seized under section 24(9) of that Act shall be made by motion on notice in the proceedings commenced by the originating notice of motion referred to in rule 18, and shall be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Notice of such application shall be given by delivering copies of the notice of motion and of any grounding affidavit and any exhibits thereto to the Director of Public Prosecutions or (as the case may be) the person or persons affected by the freezing order not later than four clear days before the return date for the motion.

(2) An application under section 24(7) of the Act of 1994 to appoint a receiver may be made by motion ex parte in the proceedings commenced by the originating notice of motion referred to in rule 18, grounded upon an affidavit sworn by or on behalf of the applicant. In addition to any other order which may be made on the hearing of the motion, the Court may direct the service of notice of the application upon, or the delivery of copies of the notice of motion and affidavit(s) to, such other person or persons as it considers appropriate.

21. (1) A notice required under sub-section (1), (2), (3), (4), (5) or (6) of section 25 of the Act of 1994 to be given by the Registrar of the Court to the Property Registration Authority shall be given by the transmission by the Registrar of the Court to the Property Registration Authority of an attested copy of the relevant order of the Court.

(2) A notice required under sub-section (7), (8) or (9) of section 25 of the Act of 1994 to be given by the Registrar of the Court to the Registrar of Companies shall be given by the transmission by the Registrar of the Court to the Registrar of Companies of an attested copy of the relevant order of the Court.

Receivers

22. Where the Court, having appointed a receiver under section 20(2) or section 24(7) of the Act of 1994, directs the receiver to account to any person in respect of the receivership, the account shall, subject to any modifications which may be necessary or as the Court may direct, be in the Form No 20 in Appendix G and the affidavit verifying the account shall subject to any modifications which may be necessary, be in the Form No 24 in Appendix G.

Appeals under section 40 of the Act of 1994

23. The provisions of Order 61 shall apply to any appeal under section 40 of the Act of 1994.

Confiscation co-operation orders under section 46 of the Act of 1994

Forfeiture co-operation orders under section 47 of the Act of 1994

24.^[10] [ • ]

Compensation

25. (1) An application under section 17(4), section 65(1), section 66(3) or section 67(3) of the Act of 1994 by a person who held property which was realisable property shall be made by originating notice of motion in which the person seeking compensation shall be the plaintiff and the Minister for Finance and the Director of Public Prosecutions shall be defendants. The originating notice of motion shall be grounded on an affidavit or affidavits sworn by or on behalf of the plaintiff, and shall be entitled:

“The High Court

In the Matter of section 17(4) (or, as the case may be, section 65(1), section 66(3) or section 67(3)) of the Criminal Justice Act 1994

Between

Plaintiff

and

Defendants”.

(2) Notice of the application shall be given, unless the Court otherwise directs, by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to each defendant not later than 21 days before the return date of the originating notice of motion.

(4) The applicant may deliver a further affidavit within seven days of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the delivery of affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any person;

IV. Proceedings under the Criminal Justice (Terrorist Offences) Act 2005

26. In Part IV (comprising rules 26 to 32 inclusive) of this Order:

“the Act of 2005” means the Criminal Justice (Terrorist Offences) Act 2005 ;

unless the context otherwise requires, words and phrases have the same meaning as in the Act of 2005.

Orders under section 14 of the Act of 2005 and related applications

27. (1) An application by a member of the Garda Síochána for an order under section 14(1) of the Act of 2005 shall be made by originating motion ex parte. The said originating motion shall be entitled:

“The High Court

In the Matter of the Criminal Justice (Terrorist Offences) Act 2005

and in the Matter of an Application affecting funds alleged to be in the possession or control of [C.D.]

On the Application of [A.B.]”

and shall, in the body thereof, specify the relief sought under section 14 of the Act of 2005.

(2) An application under section 14(1) of the Act of 2005 shall be grounded upon an affidavit or affidavits sworn by or on behalf of the applicant.

(3) Notwithstanding sub-rule (2), the Court may, in cases of urgency hear an application under section 14(1) of the Act of 2005 on oral evidence. Where any oral evidence is heard by the Court in the course of any such application ex parte, a note of such evidence shall be prepared by the applicant or the applicant’s solicitor and approved by the Court and shall unless otherwise directed by the Court, be served upon the respondent together with a copy of the order made, if any.

(4) On the hearing of any application for an order under section 14(1) of the Act of 2005, the Court may give such directions as seem appropriate:

(a) as to the service of any document by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(b) as to the service of any document outside the jurisdiction in accordance with Order 11.

28. Any application:

(a) under section 14(3) of the Act of 2005 by the respondent or any other person claiming ownership of the funds specified in an order made under section 14(1) of the Act of 2005 to discharge or vary an order made under section 14(1) of the Act of 2005,

(b) under section 14(4) of the Act of 2005 by a member of the Garda Síochána or any other person to vary an order made under section 14(1) of the Act of 2005,

(c) under section 14(6) of the Act of 2005 by a member of the Garda Síochána to discharge an order made under section 14(1) of the Act of 2005, or

(d) under section 17(1) of the Act of 2005 by a member of the Garda Síochána for an order or orders to enable the order made under section 14(1) of the Act of 2005 to have full effect

shall be made by notice of motion in the proceedings commenced by the originating motion referred to in rule 27, and may be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the whereabouts of the respondent or of any other person who appears to be affected by the making of the order under section 14(1), notice of such application shall be given by delivering copies of the said notice of motion and of any grounding affidavit and any exhibits thereto to:

(a) the person or persons referred to in section 14(9) of the Act of 2005, where the application is under section 14(3) of the Act of 2005,

(b) the person or persons referred to in section 14(10) of the Act of 2005, where the application is under section 14(4) or section 14(6) of the Act of 2005, or

(c) the person or persons referred to in section 17(2) of the Act of 2005, where the application is under section 17(1) of the Act of 2005,

not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

Orders under section 15 of the Act of 2005 and related applications

29. (1) Subject to sub-rule (6), an application for an order under section 15(1) of the Act of 2005 shall be made by originating notice of motion grounded on an affidavit or affidavits sworn by or on behalf of the applicant.

(4) Save as otherwise directed by the Court, the applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any respondent and any other person, or

(6) Where an order under section 14(1) of the Act of 2005 has been made, an application for an order under section 15(1) of the Act of 2005 affecting any of the funds and the person or persons to which the order made under section 14(1) of the Act of 2005 relates may be made by notice of motion in the proceedings commenced by the originating motion referred to in rule 27, provided that the originating motion shall, in the body thereof have specified the relief sought under section 15(1) of the Act of 2005. In any such case, the provisions of sub-rules (1) to (5) of this rule relating to an originating notice of motion shall apply to that notice of motion.

(7) Any originating notice of motion issued in accordance with this rule shall be entitled:

“The High Court

In the Matter of the Criminal Justice (Terrorist Offences) Act 2005

Between

Applicant

and

Respondent”.

30. Any application

(a) under section 15(5) of the Act of 2005 by the respondent or any other person claiming ownership of the funds specified in an order made under section 15(1) of the Act of 2005 to discharge or vary an order made under section 15(1) of the Act of 2005,

(b) under section 15(6) of the Act of 2005 by a member of the Garda Síochána or any other person to vary an order made under section 15(1) of the Act of 2005,

(c) under section 15(8) of the Act of 2005 by a member of the Garda Síochána to discharge an order made under section 15(1) of the Act of 2005 or

(d) under section 17(1) of the Act of 2005 by a member of the Garda Síochána for an order or orders to enable the order made under section 15(1) of the Act to have full effect

shall be made by motion on notice, and may be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Save in the case of an application referred to in paragraph (b), (c) or (d) of this rule where the court is satisfied that it is not reasonably possible to ascertain the respondent’s whereabouts, notice of such application shall be given by delivering copies of the notice of motion and of any grounding affidavit and any exhibits thereto to:

(i) the person or persons referred to in section 15(10) of the Act of 2005, where the application is under section 15(6) or section 15(8) of the Act of 2005,

(ii) the person or persons referred to in section 15(11) of the Act of 2005, where the application is under section 15(5) of the Act of 2005 or

(iii) the person or persons referred to in section 17(2) of the Act of 2005, where the application is under section 17(1) of the Act of 2005,

not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

Orders under section 16 of the Act of 2005

31. (1) An application by an applicant for an order under section 16(1) of the Act of 2005 shall be made by originating notice of motion grounded on an affidavit or affidavits sworn by or on behalf of the applicant. The originating notice of motion shall be entitled:

“The High Court

In the Matter of section 16 of the Criminal Justice (Terrorist Offences) Act 2005

Between

Applicant

and

Respondent”.

(2) Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the respondent’s whereabouts, notice of the application shall be given by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the respondent, and to any other person or persons as the Court may under section 16(3) of the Act of 2005 direct, not later than four clear days before the return date for the originating notice of motion.

(4) Save as otherwise directed by the Court, the applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any respondent and any other person;

Orders under section 19 of the Act of 2005

32. (1) An application for compensation under section 19 of the Act of 2005 shall be made by originating notice of motion in which the person seeking compensation shall be the plaintiff and the Minister for Finance and the person on whose application the order under section 14(1) of the Act of 2005 was made, or the order under section 15(1) of the Act of 2005 was made, shall be defendants. The originating notice of motion shall be grounded on an affidavit or affidavits sworn by or on behalf of the plaintiff. The originating notice of motion shall be entitled:

“The High Court

In the Matter of section 19 of the Criminal Justice (Terrorist Offences) Act 2005

Between

Plaintiff

and

Defendant”.

(2) Notice of the application shall, unless the Court otherwise directs be given by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the defendant not later than four clear days before the return date of the originating notice of motion.

(4) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing:

(a) make such orders or give such directions as seem appropriate for the delivery of affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any person;

V.^[11] Proceedings under the Criminal Justice (Mutual Assistance) Act 2008

33. In Part V (comprising rules 33 to 47 inclusive) of this Order:

“the Act of 2008” means the Criminal Justice (Mutual Assistance) Act 2008;

unless the context otherwise requires, words and phrases have the same meaning as in the Act of 2008;

any reference to a section shall, unless the context otherwise requires, be deemed to be a reference to a section of the Act of 2008.

Orders under sections 13 and 17

34. (1) An application by a member of the Garda Síochána not below the rank of inspector for an account information order or for an account monitoring order under section 13 or section 17 or for both such orders shall be made by originating motion ex parte. The originating motion shall be entitled:

“The High Court

In the Matter of section 13 [or section 17, as the case may be] of the Criminal Justice (Mutual Assistance) Act 2008

and in the Matter of an application for an account information order and/or an account monitoring order affecting an account in the name of [C.D.]

On the Application of [A.B.]”.

(2) The application shall be grounded upon an affidavit sworn by or on behalf of the applicant exhibiting, in the case of an application under section 17, a copy of the request and the other documents (if any) referred to in section 17(2)(b) and exhibiting, or containing an averment as to, the authorisation of the applicant under section 16 to make the application.

(3) Notwithstanding sub-rule (2) and subject to section 17(2)(b), the Court may, in cases of urgency, hear the application on oral evidence.

(4) On the hearing of an application for an order under section 13 or section 17, the Court may give such directions as seem appropriate as to the giving of notice of the making of the order to any financial institution.

35. (1) An application under section 20 to vary or discharge an order made under section 13 or section 17 shall be made by notice of motion in the proceedings commenced by the originating notice of motion referred to in rule 34, and shall be grounded upon an affidavit sworn by or on behalf of the moving party. The notice of motion and grounding affidavit shall be lodged in the Central Office, and notice of such application shall be given by delivering copies of the said notice of motion and of any grounding affidavit and any exhibits thereto to the applicant for the original order or to the financial institution affected (as the case may be), not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

(2) Where an application under section 20 to vary or discharge an order made under section 13 or section 17 is made by a financial institution affected, it shall not be necessary to give notice of such application to any other financial institution affected by the same order.

(3) Where an application is made under section 20 to vary or discharge an order made under section 17, the Central Authority shall arrange for the competent authority in the designated state to be notified in accordance with section 20(2)(a) by sending to that competent authority, where possible by electronic mail or facsimile, or otherwise by registered prepaid post, copies of the notice of motion, the grounding affidavit and any exhibits. The competent authority may submit any arguments that it deems necessary on the hearing of the application through the applicant for the order under section 17.

(4) The competent authority in the designated state concerned shall be notified for the purposes of section 20(2)(b) of the outcome of the application by the transmission to it, in the manner provided in sub-rule (3), by the Central Authority of a copy of any order of the Court made on the application.

Orders under sections 32, 35 and 47(3)

36. (1) An application for a freezing order under section 32 or a freezing co-operation order under section 35 shall be made by originating motion ex parte. The said originating notice of motion shall be entitled:

“The High Court

In the Matter of section 32 [or section 35, as the case may be] of the Criminal Justice (Mutual Assistance) Act 2008

and in the Matter of an application for a freezing order [or a freezing co-operation order, as the case may be] in respect of property at [E.] [and] [or] alleged to be in the possession or control of [C.D.]

On the Application of [A.B.]”.

(2) Where it is necessary to make an application for a freezing cooperation order under section 47(3), such application may be made by motion ex parte entitled as in the application made under section 35.

(3) An application under section 32 or 35, or to which sub-rule (2) applies, shall be grounded upon an affidavit sworn by or on behalf of the applicant. Where an application to which sub-rule (2) applies is made, the applicant may rely on any affidavit grounding the application made under section 35 and on any supplemental affidavit.

(4) Notwithstanding sub-rule (3) and subject, in the case of an application under section , to sub-section (2) of that section, the Court may, in cases of urgency, hear an application under section 32 or section 35, or to which sub-rule (2) applies, on oral evidence.

(5) On the hearing of an application for an order under section 32, the Court may give such directions as seem appropriate as to the giving of notice of the making of the freezing order to any person who appears to be or is affected by the making of the freezing order, or for the purposes of section 33, including directions for the preparation and sending of a certificate referred to in section 33, in the form in the Annex to the Framework Decision contained in Schedule 5 of the Act of 2008.

(6) On the hearing of an application for an order under section 35, evidence shall be given to the Court of the request from the designated state concerned. On the hearing of an application for an order under section 35, or an application to which sub-rule (2) applies, the Court may give such directions as seem appropriate as to the giving of notice of the making of the freezing co-operation order in accordance with section 35(8) to any person who appears to be or is affected by the making of the freezing co-operation order.

37. (1) An application:

(a) under section 32(5) to vary or discharge an order made under section 32;

(b) under section 45(1) to vary or discharge an order made under section 35;

(c) under section 36(3)(b) to require a person having possession or control of property to give up possession of it to the receiver;

(d) under section 36(5) for the Court’s directions as to any dealing in property of which possession has been taken;

shall be made by notice of motion in the proceedings commenced by the originating notice of motion referred to in rule 36, grounded upon an affidavit sworn by or on behalf of the moving party. Such application shall be served on the applicant for the freezing co-operation order, on every person who appears to be or is affected by the making of that order and, in the case of an application under section 36(3)(b), on every person appearing to have possession or control of the property concerned. Service shall be effected by delivering copies of the said notice of motion and of any grounding affidavit and any exhibits thereto to that person (or each such person) not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

(2) An application under section 36(3) for the appointment of a receiver may be made by motion ex parte in the proceedings commenced by the originating notice of motion referred to in rule 36, grounded upon an affidavit sworn by or on behalf of the applicant.

(3) In addition to any other order which may be made on the hearing of the motion referred to in sub-rule (1) or (2), as the case may be, the Court may, at such hearing, direct the service of notice of the application upon, or the delivery of copies of the notice of motion and affidavit(s) to, such other person or persons as it considers appropriate.

(4) Where the Court, having appointed a receiver under section 36(3) or section 53(1), directs the receiver to account to any person in respect of the receivership, the account shall, subject to any modifications which may be necessary or as the Court may direct, be in the Form No 20 in Appendix G and the affidavit verifying the account shall, subject to any modifications which may be necessary, be in the Form No 24 in Appendix G.

(5) A notice required under section 37(1) to be given by the Registrar of the Court to the Property Registration Authority or, as the case may be, required under section 37(4) to be given by the Registrar of the Court to the Registrar of Companies shall be given by the transmission by the Registrar of the Court to the Property Registration Authority or, as the case may be, to the Registrar of Companies, of a letter enclosing an attested copy of the relevant order of the Court.

(6) Where an application is made under section 45(1) to vary or discharge an order made under section 35, the applicant shall give notice of such application to the Central Authority for transmission to the issuing authority by delivering to the Central Authority by registered prepaid post copies of the relevant notice of motion, the grounding affidavit and any exhibits together with a certified translation thereof where appropriate or by leaving such documents at the office of the Central Authority on a receipt being given for them by the Central Authority.

(7) The issuing judicial authority shall be notified for the purposes of section 45(5) of the outcome of the application by the transmission by the Central Authority, in the manner provided in rule 35(3), of a copy of any order made by the Court on the application.

Orders under section 51

38. (1) An application by the Central Authority under section 51 for a confiscation co-operation order shall be made by originating notice of motion, grounded upon an affidavit sworn by or on behalf of the applicant, which affidavit shall exhibit a document evidencing the consent of the Minister to the making of the application in accordance with sub-section (4) of that section. The originating notice of motion shall be entitled:

“The High Court

In the Matter of section 51 of the Criminal Justice (Mutual Assistance) Act 2008

and in the Matter of an Application for a confiscation cooperation order in respect of property alleged to be in the possession or control of [C.D.]

Between

Applicant

and

Respondent”.

(2) The defendant, any other person named in the external confiscation order as being affected by it, and any person claiming to own, or have an interest in, the property in the State to which the external confiscation order relates shall be named as respondents.

(3) Unless the Court otherwise directs or permits, notice of the application shall be given by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to each respondent not later than four clear days before the return date of the originating notice of motion.

(4) Save where otherwise directed by the Court, a respondent to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him of copies of the said originating notice of motion and grounding affidavit.

(5) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(6) In addition to any other order which may be made on the hearing of the motion, the Court may, at such hearing give such directions as seem appropriate:

(a) as to the service of copies of the originating notice of motion, affidavit and any exhibits thereto on any person who it appears to the Court might be affected by the making of a confiscation co-operation order;

(b) as to the service of copies of those documents by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(7) Where the Court so permits having regard to the urgency of the case, an application may be made ex parte in the proceedings begun in accordance with sub-rule (1) for a conditional confiscation co-operation order, which order shall be served on the respondent at least seven days before the date fixed for the hearing of the originating notice of motion.

(8) Where a confiscation co-operation order made on an application commenced in accordance with this rule is served upon a defendant, there shall be endorsed upon the copy of the order served upon the defendant a memorandum in the following words or to the following effect: “If at any time after payment of a sum due under the within confiscation co-operation order has become enforceable in the manner provided for by section 52(1) of the Criminal Justice (Mutual Assistance) Act 2008, it is reported to the High Court by the Director of Public Prosecutions that any such sum or any part thereof remains unpaid, the High Court may order that you the defendant be imprisoned for a period not exceeding that set out in the Table to section 52 of the said Act.”

39. An application under section 51(5) to vary or discharge a confiscation co-operation order made under section 51 shall be made by notice of motion in the proceedings commenced by the originating notice of motion referred to in rule 38, and shall be grounded upon an affidavit sworn by or on behalf of the moving party. Such application shall be served on the applicant for the confiscation co-operation order and on every respondent to that application. Notice of the application shall be given to every person claiming to be otherwise affected by the order. Such service shall be effected, or notice given, by delivering copies of the said notice of motion and grounding affidavit and any exhibits thereto to that person not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

40. (1) Where a confiscation co-operation order has been made, any application to the Court by the Director of Public Prosecutions for an order that the defendant be imprisoned under section 52(3) shall be made by notice of motion in the proceedings commenced by the originating notice of motion referred to in rule 38.

(2) Such application shall be grounded upon an affidavit sworn by or on behalf of the moving party. Notice of such application shall be given by delivering copies of the said notice of motion and grounding affidavit and any exhibits thereto to the defendant, not later than 21 days before the return date for the motion.

(3) The defendant may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the notice of motion, grounding affidavit and any exhibits thereto and the Director of Public Prosecutions may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

41. (1) Where a confiscation co-operation order has been made, any application to the Court by the Director of Public Prosecutions for an order appointing a person to be a receiver in respect of realisable property under section 53(1) may be made by motion ex parte in the proceedings commenced by the originating notice of motion referred to in rule 38.

(2) An application

(a) under section 53(2) to empower a receiver to take possession of realisable property;

(b) for an order under section 53(3) requiring any person having possession or control of any realisable property to give possession of it to the receiver or under section 53(5) requiring a person holding an interest in realisable property to make any payment to the receiver, or

shall be made by notice of motion in the proceedings commenced by the originating notice of motion referred to in rule 38, and may be grounded upon an affidavit sworn by or on behalf of the moving party. Notice of such application shall be given to every person having possession or control or claiming to own, or have an interest in, the property concerned, by delivering copies of the said notice of motion and of any grounding affidavit and any exhibits thereto to that person (or each such person) not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

(3) In addition to any other order which may be made on the hearing of the motion referred to in sub-rule (1) or (2), as the case may be, the Court may, at such hearing, direct the service of notice of the application upon, or the delivery of copies of the notice of motion and affidavit to, such other person or persons as it considers appropriate.

Orders under section 60

42. (1) An application by the Central Authority under section 60 for a forfeiture co-operation order shall be made by originating notice of motion grounded upon an affidavit sworn by or on behalf of the applicant, which affidavit shall exhibit a document evidencing the consent of the Minister to the making of the application. The originating notice of motion shall be entitled:

“The High Court

In the Matter of section 60 of the Criminal Justice (Mutual Assistance) Act 2008

and in the Matter of an Application for a forfeiture cooperation order in respect of property alleged to be in the possession or control of [C.D.]

Between

Plaintiff / Applicant

and

Defendant”.

(2) Any person named in the external forfeiture order as being affected by it, and any person claiming to own, or have an interest in, the property in the State to which the external forfeiture order relates shall be named as defendants.

(3) Unless the Court otherwise directs or permits, notice of the application shall be given by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to any and every defendant not later than four clear days before the return date of the originating notice of motion.

(5) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(6) In addition to any other order which may be made on the hearing of the motion, the Court may, at such hearing give such directions as seem appropriate:

(a) as to the service of copies of the originating notice of motion, affidavit and any exhibits thereto on any person appearing to the Court likely to be affected by the making of a forfeiture co-operation order;

(b) as to the service of copies of those documents by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(7) Where the Court so permits having regard to the urgency of the case, an application may be made ex parte in the proceedings begun in accordance with sub-rule (1) for a conditional forfeiture co-operation order, which order shall be served on the defendant at least seven days before the date fixed for the hearing of the originating notice of motion.

43. (1) An application under section 60(7) to vary or discharge a forfeiture co-operation order made under section 60(1) shall be made by notice of motion in the proceedings commenced by the originating notice of motion referred to in rule 42, and shall be grounded upon an affidavit sworn by or on behalf of the moving party. Notice of such application shall be given to the applicant for the original order or to every person claiming to own or have an interest in the property concerned or to be otherwise affected by the order by delivering copies of the said notice of motion and of any grounding affidavit and any exhibits thereto to that person (or to each such person) not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

Applications to issue letters of request or for service out of the jurisdiction

44. (1) Save where otherwise directed or permitted by the Court, an application to the Court to issue a letter of request under section 62(1), section 67(2), section 73(1) or section 77(1) shall:

(a) where the application concerns proceedings already instituted against a person, be made by motion on notice, returnable to a date not less than six weeks prior to the trial. The notice of motion shall be filed with the proper officer and a copy served on the Director of Public Prosecutions or the person charged, as the case may be, not less than fourteen days before the return date of such motion;

(b) in any other case, be made by originating motion ex parte.

(2) Where paragraph (b) of sub-rule (1) applies, the originating notice of motion shall be entitled:

“The High Court

In the Matter of section 62(1) [or section 67(2), section 73(1) or section 77(1), as the case may be] of the Criminal Justice (Mutual Assistance) Act 2008

and in the Matter of [insert description of investigation]

On the Application of [A.B.]”.

(3) The Court may, before making an order on such an application, require the applicant to produce or file in the Central Office for consideration by the Court a completed draft of the form of letter of request containing the information required by the Act to be included in such letter.

(4) Where an order is made under this rule, the order may include such further provisions as the Court considers necessary or appropriate to facilitate the taking of any evidence concerned.

45. Every application for leave to issue and serve a document in accordance with section 80 of the Act shall be made ex parte.

Orders under section 103

46. (1) An application under section 103 shall be made by originating motion, which may be brought ex parte. The said originating motion shall be entitled:

“The High Court

In the Matter of section 103 of the Criminal Justice (Mutual Assistance) Act 2008

and in the Matter of an Application for provisional measures

On the Application of [A.B.]”.

(2) An application under section 103 shall be grounded upon an affidavit sworn by or on behalf of the applicant.

(3) In addition to any other order which may be made on the hearing of the motion, the Court may, at such hearing, direct the service of notice of the application upon, or the delivery of copies of the originating motion and affidavit to, such other person or persons as it considers appropriate.

Certificates

47. (1) A certificate in accordance with section 49(1)(b) shall be in the Form No 1 in Appendix HH.

(2) A certificate in accordance with section 58(1)(b) shall be in the Form No 2 in Appendix HH.

(3) A certificate referred to in this rule shall be issued by the Registrar of the Court on receipt of a letter from the Director of Public Prosecutions, or an officer or solicitor of the Director duly authorised in that behalf, requesting such certificate.

VI.^[12]Proceedings under Part 4 of the International Criminal Court Act 2006

48. In this Part:

the “2006 Act” means the International Criminal Court Act 2006;

“enforcement order” has the same meaning as in section 40 of the 2006 Act;

“freezing order” has the same meaning as in section 38 of the 2006 Act;

“ICC” means the International Criminal Court established by Article 1 of the Statute of the International Criminal Court, done at Rome on 17 July 1998;

unless the context otherwise requires, words and phrases have the same meaning as in the 2006 Act.

49. (1) An application by a member of the Garda Síochána not below the rank of inspector for a freezing order under section 38(4) of the 2006 Act shall be made by originating motion ex parte. The said originating motion shall be entitled:

“The High Court

In the Matter of the International Criminal Court Act 2006, Part 4

and in the Matter of an Application affecting property alleged to be in the possession or control of [C.D.]

On the Application of [A.B.]”

and shall, in the body thereof, specify the relief sought under section 38 of the 2006 Act and any property in respect of which such relief is sought.

(2) An application under section 38(4) of the 2006 Act shall be grounded upon an affidavit or affidavits sworn by or on behalf of the applicant.

(3) Notwithstanding sub-rule (2), the Court may, in cases of urgency, hear an application under section 38(4) of the 2006 Act on oral evidence. Where any oral evidence is heard by the Court in the course of any such application ex parte, a note of such evidence shall be prepared by the applicant or the applicant’s solicitor and approved by the Court and shall, unless otherwise directed by the Court, be served upon the person affected by the making of the order, together with a copy of any order made.

(4) On the hearing of any application for an order under section 38(4) of the 2006 Act, the Court may give such directions as seem appropriate:

(a) as to the service of any document by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(b) as to the service of any document outside the jurisdiction in accordance with Order 11.

(5) An application under section 38(11) of the 2006 Act to appoint a receiver may be made by motion ex parte in the proceedings commenced by the originating motion referred to in sub-rule (1), grounded upon an affidavit sworn by or on behalf of the applicant. In addition to any other order which may be made on the hearing of the motion, the Court may direct the service of notice of the application upon, or the delivery of copies of the notice of motion and affidavit(s) to, such other person or persons as it considers appropriate.

(6) Where the Court, having appointed a receiver under section 38(11) of the 2006 Act, directs the receiver to account to any person in respect of the receivership, the account shall, subject to any modifications which may be necessary or as the Court may direct, be in the Form No 20 in Appendix G and the affidavit verifying the account shall, subject to any modifications which may be necessary, be in the Form No 24 in Appendix G.

50. Any application:

(a) under section 38(7)(c) of the 2006 Act to discharge or vary a freezing order in relation to any property;

(b) under section 38(7)(d) by or on behalf of the International Criminal Court or on the conclusion of the proceedings before that Court in relation to which the freezing order was made, to discharge a freezing order;

(d) under section 38(10) of the 2006 Act to discharge a freezing order; or

(e) under section 38(13) of the 2006 Act for directions as to any dealing in property seized under section 38(12) of that Act;

shall, unless the Court otherwise directs or permits, be made by notice of motion in the proceedings commenced by the originating motion referred to in rule 48, and may be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the whereabouts of the respondent or of any other person who appears to be affected by the making of the order under section 38(4), notice of such application shall be given by delivering copies of the said notice of motion and of any grounding affidavit and any exhibits thereto to each person affected by the freezing order (so far as it relates to any property which is the subject of the application) and to the person on whose application the freezing order was made not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

51. (1) An application on behalf of the Minister under section 40(2)(a) of the 2006 Act for enforcement of an ICC order shall be made by originating notice of motion. The originating notice of motion shall be entitled:

“The High Court

In the Matter of the International Criminal Court Act 2006, Part 4

And in the Matter of an Application by [A.B.], Applicant

for the enforcement of an ICC order made against [C.D.], Respondent”

and shall, in the body thereof, specify whether the enforcement sought relates to part or all of the ICC order concerned, and whether the ICC order concerned provides for the payment of a fine or other sum or relates to the forfeiture of property.

(2) An application referred to in sub-rule (1) shall be grounded upon an affidavit or affidavits sworn by or on behalf of the applicant, which shall:

(a) where the ICC order concerned is in writing, exhibit a copy of the order (together, where necessary, with a translation of the order into an official language of the State);

(b) where the relief sought includes forfeiture, include sufficient particulars of the property to which the application for forfeiture relates, and

(c) include evidence that the ICC order (or, as the case may be, the conviction in respect of which the ICC order was made) to which the application relates is in force and not subject to further appeal.

(3) Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the whereabouts of the respondent or of any other person who appears to hold an interest in any property concerned in the application, notice of the application shall be given by delivering copies of the said originating notice of motion and of any grounding affidavit and any exhibits thereto to the respondent and to each person who appears to hold an interest in any property concerned in the application not later than four clear days before the return date for the originating notice of motion.

(4) On the hearing of any application for an enforcement order, the Court may give such directions for the further conduct of the application as seem appropriate, including:

(a) as to the service of any document by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(b) as to the service of any document outside the jurisdiction in accordance with Order 11;

(d) as to the delivery of written submissions.

(5) Where an enforcement order made on an application commenced in accordance with this rule is served upon the respondent, there shall be endorsed upon the copy of the order served upon that person a memorandum in the following words or to the following effect: “If at any time after the making of this enforcement order, it is reported to the High Court that any such sum payable under the ICC order to which this enforcement order relates remains unpaid, the High Court may order that you be imprisoned for a period not exceeding that set out in the Table to section 40 of the International Criminal Court Act 2006.”

52. (1) An application for any order under section 41(2) of the 2006 Act in relation to an enforcement order mentioned in section 41(1) of the 2006 Act shall be made by notice of motion in the proceedings commenced by the originating notice of motion referred to in rule 50, and may be grounded upon an affidavit sworn by or on behalf of the moving party.

(2) Notice of such application shall be given to the respondent and to every other person holding or claiming to hold an interest in the property concerned, by delivering copies of the said notice of motion and of any grounding affidavit and any exhibits thereto to each such person not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

(3) In addition to any other order which may be made on the hearing of the motion referred to in sub-rule (1), the Court may, at such hearing, direct the service of notice of the application upon, or the delivery of copies of the notice of motion and affidavit to, such other person or persons as it considers appropriate.

53. (1) Where an enforcement order has been made, any application to the Court by or on behalf of the Minister for an order that the respondent be imprisoned under section 40(9) of the 2006 Act shall be made by notice of motion in the proceedings commenced by the originating notice of motion referred to in rule 50.

(2) Such application shall be grounded upon an affidavit sworn by or on behalf of the moving party. Notice of such application shall be given by delivering copies of the said notice of motion and grounding affidavit and any exhibits thereto to the respondent, not later than 21 days before the return date for the motion.

(3) The respondent may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the notice of motion, grounding affidavit and any exhibits thereto and the applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

VII. General

54. A respondent or defendant in any proceedings commenced by originating notice of motion pursuant to this Order, and to whom notice of such motion has been given, shall enter an appearance to such notice of motion in the Form No 1 in Appendix A, Part II, with such modifications as may be necessary, within eight days after service upon him of the originating notice of motion or notice thereof. Where a respondent or defendant is given notice of such motion after the date first fixed for the hearing of the notice of motion, he shall enter an appearance thereto within the time fixed by the Court for that purpose.

55. Save as otherwise provided by this Order or directed by the Court, all proceedings under this Order shall be heard and determined upon affidavit.

[1] Order 136, “Proceeds of Crime and Financing of Terrorism”, inserted by SI 242 of 2006, effective 5 June 2006. SI 242 of 2006, article 2 also provides: “Nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Proceeds of Crime Acts 1996 and 2005 under the Criminal Assets Bureau Acts 1996 and 2005, under the Criminal Justice Act 1994 (as amended) or under the Criminal Justice (Terrorist Offences) Act 2005 initiated before the commencement of these Rules. Any such proceedings shall, save where the court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.”

[2] Title of Order 136 substituted by SI 54 of 2010. SI 54 of 2010 is effective 16 March 2010, subject to article 2 which provides: “Nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Criminal Justice Act 1994 initiated before the commencement of these Rules. Any such proceedings shall, save where the Court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.”

[3] Order 136 rule 1A inserted by SI 316 of 2018, effective 2 September 2018.

[4] Order 136 rule 9 substituted by SI 316 of 2018, effective 2 September 2018.

[5] Order 136 rule 10 substituted by SI 54 of 2010. SI 54 of 2010 is effective 16 March 2010, subject to article 2 which provides: “Nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Criminal Justice Act 1994 initiated before the commencement of these Rules. Any such proceedings shall, save where the Court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.”

[6] Order 136 rules 15 to 17 substituted by SI 316 of 2018, effective 2 September 2018.

[7] Title preceding Order 136 rule 18 amended by SI 54 of 2010, which substituted “Restraint orders” with “Freezing orders”. SI 54 of 2010 is effective 16 March 2010, subject to article 2 which provides: “Nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Criminal Justice Act 1994 initiated before the commencement of these Rules. Any such proceedings shall, save where the Court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.”

[8] Order 136 rules 18 to 21 substituted by SI 54 of 2010. SI 54 of 2010 is effective 16 March 2010, subject to article 2 which provides: “Nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Criminal Justice Act 1994 initiated before the commencement of these Rules. Any such proceedings shall, save where the Court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.”

[9] Order 136 rule 19 substituted by SI 316 of 2018, effective 2 September 2018.

[10] Order 136 rule 24 deleted by SI 54 of 2010. SI 54 of 2010 is effective 16 March 2010, subject to article 2 which provides: “Nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Criminal Justice Act 1994 initiated before the commencement of these Rules. Any such proceedings shall, save where the Court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.”

[11] Order 136 Part V (entitled “General”, rules 33 and 34) substituted as rules 33 to 49 by SI 54 of 2010. SI 54 of 2010 is effective 16 March 2010, subject to article 2 which provides: “Nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Criminal Justice Act 1994 initiated before the commencement of these Rules. Any such proceedings shall, save where the Court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.”

[12] Order 136 Part VI (“General”, rules 48 and 49) substituted by rules 48 to 55 by SI 117 of 2013, effective 15 April 2013.

Court Rules

Details

Order 136 - Proceeds of Crime - Financing of Terrorism - Criminal Justice (Mutual Assistance)