Criminal Law Reform: Recent Initiatives
Criminal Justice (Forensic Evidence and DNA Database System) Act 2014
The Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 was signed by the President on 22 June, 2014. The main purposes of the Bill are to replace the existing statutory and common law arrangements governing the taking of samples for forensic testing from suspects for use as evidence in criminal investigations and proceedings with an updated statute-only regime; and provide for the establishment of a DNA database system for use by the Garda Síochána as an intelligence source for criminal investigations and also to assist in finding or identifying missing or unknown persons.
The Criminal Law (Human Trafficking) (Amendment) Act 2013 was signed by the President on 9 July, 2013. This Act transposes in full the criminal law provisions of EU Directive 2011/36/EU of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHAadopted in April 2011. Most of the criminal law measures in the directive have already been implemented by the Criminal Law (Human Trafficking) Act 2008.
The Criminal Justice Act 2013 was signed and enacted by the President on 12 June, 2013. The primary purpose of the Act is to amend the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and to provide for the cessation of mobile communications services where necessary for the aversion of serious threats, and to provide for related matters.
Criminal Justice Act 2013 (commencement) Order 2013 (PDF - 96KB)
Prison Development (Confirmation of Resolutions) Act 2013 (PDF 344KB)
The Prison Development (Confirmation of Resolutions) Act 2013 was signed by the President on 23 July, 2013. The purpose of the Act is to confirm the resolutions of Dáil Éireann and Seanad Éireann under section 26 of the Prisons Act 2007 approving of the development of a new prison in Cork on a site adjacent to the existing prison.
Vetting procedures in regard to persons working with children or vulnerable adults are already a requirement under the Children First National Guidelines. Currently about 300,000 vetting applications are processed by the Garda Vetting Unit each year. The primary purpose of this Act is to put the procedures that have been developed to vet these applications into law. The Act also makes it mandatory for persons working with children or vulnerable adults to be vetted, whereas this was done previously on the basis of a voluntary code. The Act also creates offences and penalties for persons who fail to comply with the provisions of the Act. In addition, the Act also provides for the use of "soft" information in regard to vetting, which is referred to as "specified information" in the Act. Specified information is information other than a court determined criminal record. For example, it includes conclusions from investigations of child abuse or neglect that have been conducted by the HSE, where such investigations have concluded that a person poses a threat to children or vulnerable persons. Specified information will also include similar conclusions arising from fitness to practice inquiries by statutory bodies such as those conducted by the Medical Council, the Nursing Council or the Teaching Council.
The primary purpose of the Europol Act 2012 is to give effect to a 2009 EU Council Decision establishing Europol. Europol has been established since 1995 under an EU Convention which had been given force of law in the State through the Europol Act 1997 (as amended). That Act will be repealed and replaced by the Europol Act 2012. While largely reflecting the provisions of the Convention, the Council Decision also extends Europol’s mandate. Under the Convention, organised crime was the sole focus of Europol’s activities. However, the Council Decision removes the requirement that an organised criminal structure must be involved before Europol can act. It will now be sufficient for the crime concerned to be a serious offence involving two or more Member States. These offences, which are listed in the Annex to the Act, include the main transnational crimes such as drug trafficking, terrorism, money laundering and also include murder and kidnapping.
The Criminal Justice (Search Warrants) Act 2012 (Number 33 of 2012) was signed by the President on 24 July, 2012 and commenced on 25 July, 2012. The Act restores, in updated form, the search warrant provision in section 29 of the Offences against the State Act 1939 which was struck down by the Supreme Court in its judgment in the case of Ali Charaf Damache v The Director of Public Prosecutions, Ireland and the Attorney General (delivered on 23 February 2012). The Act also amends the provisions in the Criminal Justice (Drug Trafficking) Act 1996 relating to the issue of search warrants under section 26 of the Misuse of Drugs Act 1977.
The European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, (Number 30 of 2012) came into effect when signed by the President on 24 July, 2012. The Act enables the application of provisions of the European Arrest Warrant Act 2003 to states other than EU Member States and to make a number of amendments, mainly of a procedural or technical nature, to the European Arrest Warrant Act 2003 and to the Extradition Acts 1965-2001.
The Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (Number 24 of 2012) was signed by the President on 18 July, 2012 and came into effect on 1 August 2012. The Act creates a criminal offence of withholding information relating to the commission of a serious offence, including a sexual offence, against a person under 18 years or a vulnerable person. The offence arises where a person knows or believes that a specified offence has been committed against a child or vulnerable person and he or she has information which would be of material assistance in securing the apprehension, prosecution or conviction of another person for that offence and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.
The Criminal Law (Defence and the Dwelling) Act 2011 (Number 35 of 2011) was signed by the President on 19 December, 2011 and commenced on 13 January, 2012. The Act clarifies the law concerning defence of the home. It recognises in a very practical manner the special constitutional status of a person’s dwelling and makes it clear that a person may use reasonable force to defend themselves in their home. It allows for the use of such force as is reasonable in the circumstances, to protect people in the dwelling from assault, to protect property, to prevent the commission of a crime, or to make a lawful arrest.
The Criminal Justice (Community Service) (Amendment) Act 2011 (Number 24 of 2011) amends the Criminal Justice (Community Service) Act 1983. The 2011 Act places a greater obligation on the courts, when sentencing an offender, to consider imposing a community service order in circumstances where a sentence of imprisonment of up to 12 months is being considered. The community service scheme delivers benefits at the individual, local and national level. Increasing its use delivers financial savings, diverts from the prison system offenders whose imprisonment is a substantial expense to the state and provides reparation in the form of unpaid work to the benefit of the community.
The Criminal Justice Act 2011 (Number 22 of 2011) was signed into law by the President on 2 August 2011. The Act amends the criminal law to improve certain procedural matters and strengthen Garda investigative powers. The intention is that such improvements will assist in reducing the delays associated with the investigation and prosecution of complex crime, in particular white collar crime. The Act also clarifies two issues relating to persons detained in Garda custody in connection with the investigation of an offence: (i) that such persons have the right to access legal advice prior to questioning (other than where exceptional circumstances apply or they have waived their right), and (ii) the circumstances in which such persons may be questioned between the hours of midnight and 8 a.m.
The Criminal Justice (Public Order) Act 2011 (Number 5 of 2011) came into operation on signature by the President on 2 February, 2011. The Act reforms and updates the law on begging following the 2007 High Court Judgement in the Dillon case that found part of the vagrancy (Ireland) Act 1847 to be unconstitutional. The Act grants a new power to a member of an Garda Síochána to direct persons who are begging to desist and move on from key locations such as ATM’s, vending machines and business premises. The Act will protect members of the public in locations where begging activity can be particularly intimidating. It will also protect business owners where the behaviour or number of persons begging near their premises is having a negative effect on their trade.