Mutual Legal Assistance

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Mutual assistance consists of a variety of mechanisms whereby assistance in relation to criminal investigations or proceedings may be sought by one state from another.

In Ireland, the main legislative basis for the provision and receipt of such assistance is the Criminal Justice (Mutual Assistance) Act 2008, as amended. The Minister for Justice acts as the Irish Central Authority for Mutual Assistance.

Generally, the Central Authority has the function of coordinating correspondence between competent authorities in Ireland and those abroad for both incoming and outgoing requests, performing administrative functions in relation to coordinating requests which require the input of a number of different authorities in Ireland and sending outgoing requests for mutual assistance to competent authorities in other jurisdictions.

It is important to note that civil proceedings, as well as criminal proceedings in a foreign jurisdiction for an offence which would be considered a civil matter in Irish law, are not covered by the criminal mutual legal assistance process.

It is not the function of the Central Authority to offer any legal advice to any person affected by a request for mutual legal assistance. If you are affected by such a request, you may wish to seek advice from a qualified legal practitioner.

Cooperation which is purely police to police or law enforcement cooperation is not covered by the mutual assistance process. However, where elements of both law enforcement cooperation and mutual assistance are requested, the Central Authority can assist in coordinating a response.

Notwithstanding the cooperative nature of the mutual assistance process, the Central Authority can refuse to provide assistance for a number of reasons. Pursuant to section 3 of the Criminal Justice (Mutual Assistance) Act 2008, mutual assistance will not be provided in any of the following circumstances:

• if providing the requested assistance would prejudice a criminal investigation or criminal proceedings in Ireland
• if the request was made for the purpose of prosecuting or punishing a person on account of his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation
• if providing the requested assistance may result in the person being subjected to torture or to any other contravention of the European Convention on Human Rights
• if providing the requested assistance would be likely to prejudice the sovereignty, security or other essential interests of Ireland or would be contrary to public policy (ordre public)

Legal Basis of Request – International Instrument

The policy of the Central Authority is to seek confirmation that any request made for assistance from Ireland is based on a valid international instrument which is relevant to the offence quoted in the request.

Ireland is a party to a number of multilateral conventions and bilateral treaties. Information regarding these international instruments is available on the websites of the depositaries of such treaties, for example the Council of Europe Treaty List. European Union member states may wish to consult with the European Judicial Network website for information on whether or not Ireland operates specific EU legal instruments for cooperation.

In exceptional circumstances, requests made on the basis of reciprocity can be considered on a case by case basis.

Execution of a European Investigation Order

Ireland does not accept European Investigation Orders (please see recital 44 of the European Investigation Order directive for further information). Any request for the execution of a European Investigation Order received by the Central Authority will be kept on hold until:

• the request is sent as a standard mutual legal assistance request, including a formal Letter of Request and any other documentation necessary for the execution of the request, at which point the Central Authority can take steps to provide the assistance requested
• the request is formally withdrawn, at which point the original European Investigation Order documentation will be returned to the requesting authority

Evidence Gathering Measures

Taking of Evidence Before a Judge

The Central Authority can seek to use formal powers granted to it under section 63 of the Act to take evidence. In this case, a witness or suspect will be served with a summons to give evidence under oath before a judge of the District Court.

Please note it can take some time to arrange a hearing as the allocation of court time and judges are not under the control of the Central Authority.

The Central Authority will require the name of the person to be interviewed, their address and a full list of questions to be put to the witness or suspect. If you do not know the location of the witness or suspect, you should make enquiries through Interpol to obtain an address before sending the request.

Assurances Required

Before arranging for the evidence to be taken before a judge, it will be necessary for your request to comply with the provisions of section 63 and section 64 of the Act. These provisions, and legal advice received by the Central Authority in relation to the right to challenge evidence in court, compel our office to seek the following assurances for these kinds of requests (you may copy these into a template letter which can be signed, dated and stamped to confirm these assurances are being given):

Assurance from Requesting Authority required under Section 63 of Criminal Justice (Mutual Assistance) Act 2008

Failure to provide these assurances will result in your request not being executed.

Search for Specified Evidential Material (Production Orders)

If your request is for specified evidential material to be produced by a person or organisation, it is necessary that you fill in the template provided here to support your request. This template is designed to help requesting authorities provide all of the information required under national legislation and by the court when deciding on issuing production orders.

Examples of such requests commonly fulfilled by this office include requests for documents containing bank account transactions during a specified period or content data from an internet service provider. In such cases, the Central Authority will invoke the powers granted to it by section 75 to obtain this evidence by way of a Production Order. This Production Order is applied for in the District Court by An Garda Síochána (the Irish Police), or the Revenue Commissioners as appropriate, and subsequently served on the person or organisation named in the request. The relevant law enforcement agency will forward any material subsequently uplifted on foot of the Production Order to the Central Authority, who will then transmit this material to the requesting authority.

Requests for Production Orders from both member states and non-member states for the prosecution solely of offences which are not criminal offences in Ireland, for example slander or failure to pay child maintenance, will be refused.

Member States – Minimum Sentences

Requests for specified evidential material from member states must meet at least one of the following criteria:

• the conduct giving rise to the request is punishable under the law of both Ireland and the requesting member state by imprisonment for a maximum period of at least 6 months
• the conduct giving rise to the request is punishable under the law of both Ireland and the requesting member state by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters
• the request has been made for the uplifting of material in connection with a request made under Part 4 of the Criminal Justice (Mutual Assistance) Act 2008 for the freezing of evidence and which is for an offence which may be punished in the requesting member state by imprisonment for a term of not less than 3 years

Non-Member States - Dual Criminality

Please note, for requests from non-Member States there must be dual criminality for the relevant law enforcement agency to obtain a Production Order, meaning that the conduct giving rise to the request must be punishable under the law of Ireland and the law of the requesting state.

It is essential that you provide an extract of the legislation which specifies the offence(s) being investigated or prosecuted in your jurisdiction and which outlines the maximum sentence(s) applicable. A professional translation of this text must be provided so that the Central Authority can determine whether or not your request meets the relevant required standard.

Required Information

Your request for a Production Order must include the following details:

• the name and address of the person or organisation that holds the specified material
• account numbers or similar identifiers which will allow the organisation to produce the relevant material
• specific dates, or a date range, which apply to the material required. Please note, requests for information without these specifics will be considered “trawls” and such “trawls” will not be carried out
• where preservation of the data (see below) has been arranged with the holder of the requested material, any relevant reference numbers should be included in the Letter of Request
• the reason you are seeking the particular evidential material specified in the request
• the relevance the material has to the underlying offence
• the basis for suspicion of the underlying offence
• the basis for believing the person or organisation from whom the material is sought has possession of said evidence

Failure to provide the required information will prevent the Central Authority from being able to secure the evidential material requested.

Preservation of Material

In some cases, preservation of the data will have been arranged with the company from whom the evidence is sought by the authorities in the requesting country. It is important to note that the responsibility for seeking preservation of data lies with the requesting authority. Any subsequent renewal of this preservation until the evidence is received is also the sole responsibility of the requesting authority. Where data has been preserved and the requesting authority has been provided with a preservation reference number, this reference number should be included in the request.

Assurances Required

Requests for Production Orders must comply with the provisions of section 75 of the Act. These provisions, and legal advice received by the Central Authority in relation to the right to challenge evidence in court, compel our office to seek the following assurances for these kinds of requests (you may copy these into a template letter which can be signed, dated and stamped to confirm these assurances are being given):

Assurance from Requesting Authority required under Section 75 of Criminal Justice (Mutual Assistance) Act 2008

Failure to provide these assurances will result in your request not being executed. In certain circumstances, the Central Authority will agree to waive the requirement at point (2) above that the evidence be returned. If such an exception is required, please outline in your Letter of Request why it is necessary for your office to retain the requested material.

Search of a Location or Premises

Where your request is for the search of a location or premises, the Central Authority will invoke the powers granted to it by section 74 to seek this evidence by way of a search conducted by An Garda Síochána (the Irish Police), or the Revenue Commissioners as appropriate. A Search Warrant is applied for in the District Court by the relevant law enforcement agency and a search subsequently executed on the location or organisation specified in the request, with any material uplifted which was specified in the request subsequently sent to the requesting authority. This may be effected by transmission directly to the requesting authority by the relevant law enforcement agency or the material may be first sent to the Central Authority for onward transmission.

Requests for search of premises from both member states and non-member states for the prosecution solely of offences which are not criminal offences in Ireland, for example slander or failure to pay child maintenance, will be refused.

Member States – Minimum Sentences

Requests for specified evidential material from member states must meet at least one of the following criteria:

• the conduct giving rise to the request is punishable under the law of both Ireland and the requesting member state by imprisonment for a maximum period of at least 6 months
• the conduct giving rise to the request is punishable under the law of both Ireland and the requesting member state by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters

Non-Member States - Dual Criminality

Please note, for requests from non-Member States there must be dual criminality for An Garda Síochána (Irish Police), or the Revenue Commissioners as appropriate, to obtain a Production Order, meaning that the conduct giving rise to the request must be punishable under the law of Ireland and the law of the requesting state.

Assurances Required

Requests for search of a location or premises must comply with the provisions of section 74 of the Act. These provisions, and legal advice received by the Central Authority in relation to the right to challenge evidence in court, compel our office to seek the following assurances for these kinds of requests (you may copy these into a template letter which can be signed, dated and stamped to confirm these assurances are being given):

Assurance from Requesting Authority required under Section 74 of Criminal Justice (Mutual Assistance) Act 2008

Failure to provide these assurances will result in your request not being executed. In certain circumstances, the Central Authority will agree to waive the requirement at point (2) above that the evidence be returned. If such an exception is required, please outline in your Letter of Request why it is necessary for your office to retain the requested material.

Hearing via Video Link

Please be advised that, due to constraints on court time, you must provide the Central Authority with at least 8-12 weeks notice before the proposed date of hearing when submitting a request for assistance. The allocation of court time is not within the remit of the Central Authority, so giving the longest possible notice will assist the Central Authority in successfully arranging a hearing date in consultation with the Courts Service.

Legal Requirements

When seeking the hearing of a witness or suspect via video link, the provisions of section 68, section 69 and section 70 of the Act apply in relation to the formalities of the hearing and the immunities and privileges of the witness or suspect.

These provisions require that requesting authorities include the following information in a Letter of Request:

• the name, address and, if known, the nationality of the witness
• the court or authority making the request
• the name of the person or persons who will conduct the hearing
• reason(s) why the witness or suspect is unable to attend a hearing in the requesting state in person
• proposed dates for the video link hearing

If the request complies with the relevant sections quoted above, the Central Authority will arrange for the witness or suspect to be summoned to give evidence via video link.

Practical Steps to Ensure a Successful Video Link

Before the hearing takes place, there are further practical steps which will assist in the execution of a hearing by video link:

• please provide contact details such as a phone number, an e-mail and an IP address so that a test call can be arranged with the relevant court (please provide this at least 2 weeks in advance)
• if you are unable to provide an IP address, an ISDN number may be provided by the Courts Services. If an ISDN number is provided, it is of the utmost importance that only the specific ISDN number provided by the Irish Courts is dialled as any error could interrupt another hearing
• please ensure that you dial in to the provided IP address or IDSN number at the correct time, again to avoid interrupting another hearing in session
• if for any reason you are unable to attend the video link hearing, please contact the Central Authority and the Courts Services as soon as possible to avoid confusion and to allow courts to make better use of their resources
• please provide contact details for a technician based in the requesting Court to arrange a test of the system prior to the date of the proposed link
• please give an indication as to whether a member of An Garda Síochána is liaising with the witness, as this will assist in the service of the summons

Witness Expenses

In the event that a witness must travel to Dublin in order to give evidence by video link, the Central Authority will require an assurance that the cost of witness expenses will be met by the authorities of the requesting country. If you find it more convenient, the Central Authority has no objection to the authorities of the requesting country arranging the direct payment of expenses to a witness.

Identification and DNA Evidence

Identification evidence is a special category of evidence and includes any of the following material:

• a fingerprint, palm print or photograph of a person
• a footprint, dental impression or other impression of any part of the body
• a sample of blood, hair, urine or saliva
• a swab from any part of the body
• a nail or any material found under a nail
• a DNA profile generated from a DNA sample or bodily sample of taken from an individual

Any request for any evidential material which falls under the categories listed above is subject to section 78, section 79, section 79A, section 79B and section 79C of the Criminal Justice (Mutual Assistance) Act 2008.

A request for identification evidence must be accompanied by:

• a statement that the evidence is required in connection with criminal proceedings, or a criminal investigation, in the requesting state
• a description of the conduct constituting the offence and an extract of the relevant legislation
• a statement outlining the purpose for which the evidence is sought
• an assurance that any evidence that may be furnished in response to the request will not be used for any purpose other than that specified in the request unless consent to do so is obtained from the Minister for Justice
• an assurance that the evidence, including all records and copies of records relating to it, will be destroyed when no longer required for the purpose specified in the request and no later than 3 months after any of the conditions specified in section 79(10)(a) – (e) of the Criminal Justice (Mutual Assistance) Act 2008 apply

In addition, if the request is for a DNA profile pursuant to Article 7 of the Prüm Decision (2008/615/JHA), it must be accompanied by the name and reference code of the requesting authority and:

• an investigation warrant or
• a statement issued by a competent authority in requesting state confirming that the requirements for the taking of the requested DNA sample in the requesting state would be complied with if the person from whom they were required were in the requesting state

Once the Central Authority receives a request for identification evidence that contains the information and assurances outlined above, and which also complies with the provisions of the relevant international instrument, it is sent to An Garda Síochána for action. Any evidential material successfully uplifted by An Garda Síochána is then sent back to the requesting authority via the Central Authority.

It is essential that the requesting authority informs the Central Authority of the destruction of any identification evidence, along with all record and copies of records relating to it, in a timely fashion. This is crucial to the Central Authority in meeting its own statutory obligations in relation to administering records regarding identification evidence.

Freezing and Confiscation

Enforcement of a Freezing Order

When freezing or restraint of property is required, it is often of the utmost importance that a request be executed as swiftly as possible to prevent the liquidation of assets or destruction of evidence. In order to facilitate the speedy execution of requests for freezing or restraint of property it is recommended that the following steps be taken:

• prior to sending the request, ensure that all necessary law enforcement cooperation has been used to trace and identify assets
• requests that require the gathering of evidential material prior to the freezing of assets should be set out according to the relevant guidelines on this page and explicitly state the order in which the requested activities are to be carried out
• in the case of a request from an EU member state, ensure that it is accompanied by the freezing order made by the court in your jurisdiction (referred to as an “external freezing order”) and a certificate duly completed and certified as accurate by the issuing judicial authority. This certificate is provided for by Article 9 of Council Framework Decision 2003/577/JHA annexed to the text of the decision

The steps recommended above are without prejudice to the requirements of the relevant international instrument under which the request is being made. It is vital that any such requirements be complied with fully before the request for assistance can be executed.

Property Already Subject to an Order

Please be aware that if the “external freezing order” is for property which is the subject of an order made by a court in other proceedings in Ireland then the “external freezing order” will not be executed until the domestic order is discharged.

Application for Order in High Court

On receipt of a request to freeze property which complies with the requirements of our legislation and the relevant international instrument, the Central Authority causes an application to be made to the High Court for a “freezing co-operation order”. Please be aware that there are several reasons why the court may refuse, as outlined at section 46, or postpone, as outlined at section 47, the making of a “freezing co-operation order”. The Central Authority will communicate the decision of the court to you and consult with you to determine any further assistance you may require.

Managing the Order

Once in place, the Central Authority or any person affected by the “freezing co-operation order” may make an application to the High Court to have the order varied or discharged, as outlined at section 45. The Central Authority will inform you of any such application and the grounds on which such an application has been made.

It is of vital importance that updates, for example the termination or variation of a freezing order in the requesting state, be communicated to the Central Authority in a timely manner. This will allow our office to make the relevant applications to the High Court promptly and without delay.

Enforcement of a Confiscation Order

A confiscation order made in a court in a designated state and sent to the Central Authority with a request for enforcement is referred to as an “external confiscation order”. The process for enforcing an “external confiscation order” is slightly different for EU Member States than it is for non-EU states. There are, however, features common to both kinds of request.

All “external confiscation orders” must comply with all the requirements of the relevant international instrument under which the request is made and must be accompanied by:

• a duly certified copy of the order
• a statement by or on behalf of the court that made the order that it is in force and not subject to appeal
• if the person against whom the order was made did not appear in proceedings, a statement by or on behalf of the court that made the order that notice was received by the person in good time to defend the proceedings
• a brief description of the conduct constituting the offence which resulted in the making of the order
• translations of all relevant documents

EU Member State External Confiscation Orders

In the case of a request from an EU Member State, the Central Authority assesses the “external confiscation order” and, if it appears that there are grounds for refusal, postponement, variation or termination of the order, we will make an application to the High Court and inform you of the result of these proceedings. The Central Authority will consult with you to determine any further assistance you may require.

EU Confiscation Order - Enforcement

If the request complies with the relevant legislation and there do not appear to be any grounds for refusal, postponement, variation or termination, the Central Authority sends the “external confiscation order” to the Director of Public Prosecutions for execution. We will coordinate any correspondence between the requesting authority and the Office of the Director of Public Prosecutions while the request is being executed.

EU Confiscation Order - Managing the Order

Once the order is in place, an application may be made to the High Court by any person affected by the “external confiscation order” for the order to be varied or discharged. See section 51E. The Central Authority will inform you of any such application and the grounds on which such an application has been made.

Non-EU State External Confiscation Orders

In the case of a non-EU State, the Central Authority makes an application to the High Court for an order known as a “confiscation co-operation order”. The High Court may find that there are reasons for refusal or postponement of the order. The Central Authority will communicate the decision of the court to you and consult with you to determine any further assistance you may require.

Non-EU Confiscation Order - Enforcement

If the request complies with the relevant legislation and there do not appear to be any grounds for refusal or postponement, the High Court will make the “confiscation co-operation order.” This order may then be enforced the Director of Public Prosecutions. We will coordinate any correspondence between the requesting authority and the Office of the Director of Public Prosecutions while the request is being executed.

Non-EU Confiscation Order - Managing the Order

Once in place, an application may be made to the High Court by the Central Authority or anyone affected by the “confiscation co-operation order” for the order to be varied or discharged. See section 51D. The Central Authority will inform you of any such application and the grounds on which such an application has been made.

Other Measures

Service of Documents (Judicial Documents or Summons)

Please be aware that a person served in Ireland with a document issued in another jurisdiction is under no obligation under Irish law to comply with any requirement in it.

EU Member States

Please note that judicial authorities in European Union member states are free to post judicial documents or summonses directly to persons in Ireland. Should you be unable to post documents directly to the intended recipient (for example, the subject’s address is not known or your domestic law does not allow you to send procedural documents to the subject by post) then a request may be made to the Central Authority for Mutual Assistance for the service of documents.

Requests for personal service of documents from EU member states will not be executed unless one of the following conditions applies:

• the address of the person concerned is unknown or uncertain
• under the law of the member state proof of service on the person is required, other than proof that can be obtained by post
• it has not been possible to serve the document by post
• the applicant for the issue of the document or the issuing authority has good reason for believing that service by post would not be effective or is inappropriate (please provide an explanation of the reason for this belief)

Non-EU/Third Countries

Non-EU/Third Countries may not post documents directly to recipients in Ireland. However, non-EU/Third Countries may request personal or postal service of documents via the Central Authority in all cases.

Assurances Required – Summons Only

Service of summons from other jurisdictions in Ireland by the Central Authority is governed by section 82 of the Act. Whether the service of summons is requested to be effected by post or in person, the Central Authority requires that the requesting authority provide the following assurances:

Assurance from Requesting Authority required under Section 82 of Criminal Justice (Mutual Assistance) Act 2008

Failure to provide these assurances will result in your request not being executed.

Proof of Service

Whether service is attempted by post or in person, the Central Authority will furnish the requesting authority with proof of service. This may be a receipt for registered postal delivery or a signed receipt and report from a member of An Garda Síochána. If the documents cannot be served, the Central Authority will inform the requesting authority of that fact and the reasons for failure to serve.

Obtaining Court Records or Criminal Records

Criminal Records

Requests made by EU member states for information from criminal records should be sent to the Central Authority for Criminal Records in Ireland at the following address:

Requests made by non-EU states for information from criminal records will be considered by the Central Authority for Mutual Assistance on a case by case basis.

Court Records

Requests for court records or copies of judgements can be directed in one of two ways:

• if the records are publicly available, then there is no need to send a mutual legal assistance request as the information will be available on the Courts Service of Ireland website
• if the records are not publicly available, a formal mutual legal assistance request should be sent to the Central Authority for Mutual Assistance. These will be considered on a case by case basis

Contact Us

Original hard copies of mutual legal assistance requests should be sent to the following address:

Our office can also deal with queries addressed via:

E-mail (for all new mutual assistance requests and correspondence concerning existing requests): marequests@justice.ie

E-mail (for all other general queries): mutual@justice.ie

Our office will also accept requests which are sent through diplomatic channels.

Useful Resources

• Consolidated Version of the Criminal Justice (Mutual Assistance) Act 2008 – the domestic law which applies to the majority of mutual legal assistance requests to Ireland
• Consolidated Version of the International Criminal Court Act 2006 - the domestic law which applies to mutual legal assistance requests made to Ireland under the Rome Statute of the International Criminal Court
• Classes of Court Records – a list of the different records held in relation to court proceedings in Ireland. In general, documents of the first class (available outside Freedom of Information) are publicly available and, as such, do not need to be requested via mutual legal assistance. Documents of the second class (available via Freedom of Information) and third class (exempt records) are not publicly available and should be sought via mutual legal assistance
• EJN Homepage - the European Judicial Network, a network of mutual legal assistance practitioners from EU Member States. Consult the Status of implementation in the Member States of EU legal instruments section for information on whether or not Ireland currently operates specific mechanisms of EU legal cooperation
• Eurojust Homepage - a judicial cooperation unit set up to improve the coordination of investigations and prosecutions and the cooperation between the competent authorities in the Member States

Disclaimer

While every care has been taken in the preparation of the content of this website, the Central Authority for Mutual Assistance can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions.