Estreatment Of Recognisances Forfeiture Of Money Lodged : S.I. No. 194 Of 2001
The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):
No27-S.I. No. 41 Of 2008: District Court (Criminal Justice Act 2007) Rules 2008
No27-S.I. No. 260 Of 2010: District Court (Criminal Justice (Miscellaneous Provisions) Act 2009) Rules 2010
No27-S.I. No. 225 Of 2019: District Court (Estreatment) Rules 2019
Estreatment of recognisances forfeiture of money lodged1
Judge to certify non-performance of condition
1. Where, upon the non-performance of a condition of a recognisance which the Court has power to estreat, it is intended to apply to the Court for an order to estreat the recognisance or for an order to forfeit a sum of money which was lodged in lieu of a surety or sureties by the party entering into the recognisance, the recognisance shall first be produced to a Judge assigned to the court district wherein it is then deposited, who may, upon having such proof as the Judge shall think fit, endorse on the recognisance a certificate in the Form 27.1 Schedule B, and such certificate shall be evidence of the non-performance of any condition of the recognisance certified therein.
Venue for application to estreat or to forfeit
2. An application for an order to estreat such recognisance or to forfeit such sum of money shall be made by a superintendent of the Garda Siochana and may be made at any subsequent sitting of the Court at which the order directing that the recognisance be entered into was made or before which the principal party was bound by the recognisance to appear.
Notice of application - to estreat
3. (1) Such application for an order to estreat shall be preceded by the issue and service of a notice in the Form 27.2 Schedule B upon the principal party or the surety or sureties to the recognisance or upon all or any of them as appropriate notifying them of such application.
- to forfeit money lodged
(2) Such application for an order to forfeit a sum of money lodged in lieu of a surety or sureties shall be preceded by the issue and service of a notice in the Form 27.3 Schedule B upon the party by whom the said sum was lodged.
- Service of notice
(3) A notice issued under this rule shall be served upon each person to whom it is directed in accordance with the provisions of Order 10, rule 3 (1) of these Rules or by ordinary post and shall be served at least seven days before the date fixed for hearing the application.
(4) Where the person upon whom it is proposed to serve a notice issued under this rule has not a fixed address within the State, service of the notice upon that person may be effected in such manner as the Judge shall direct.
(5) Where, however, it is proposed to serve a notice of application for an order to forfeit a sum of money lodged in lieu of a surety or sureties and the Judge is satisfied, upon application made in that behalf, that the person to be served has not a fixed address within the State and that the person's whereabouts are unknown and cannot be ascertained by reasonable enquiries, the Judge may, if considering it proper to do so, by order dispense with service in such case
- Lodgment of notice
(6) When service of a notice issued under this rule has been effected, the original notice, together with a statutory declaration as to service thereof, shall be lodged with the Clerk at least four days before the date fixed for the hearing.
Order of the court
4. The Court, on hearing an application aforementioned and upon production of the recognisance with the certificate aforesaid endorsed thereon and on hearing any further evidence (if any) tendered in support of the application, may,
(a) where the application is for an order to estreat a recognisance, make an order in the Form 27.4, Schedule B (which may be by way of an endorsement on the recognisance) to estreat the recognisance in such amount or amounts and against the principal party or the surety or sureties or against all or any of them as the Court thinks fit,
2Provided that a recognisance shall not be estreated against any person who has not been served with the notice of application to estreat; or
- to forfeit money lodged
(b) where the application is for an order to forfeit a sum of money lodged in lieu of a surety or sureties, make an order in the Form 27.5 Schedule B (which may be by way of an endorsement on the recognisance) directing the forfeiture of the sum of money lodged or any part thereof.
Clerk to send notices
5. (1) Whenever the Court makes an order to estreat a recognisance the Clerk shall send by ordinary post to each person against whom the order was made a notice in the Form 23.1 Schedule B (with any necessary modifications) informing that person of the making of the order, of the amount in which the recognisance has been estreated against that person and of the time (if any) allowed for payment thereof.
(2) Whenever the Court makes an order directing the forfeiture of a sum of money lodged in lieu of a surety or sureties (or part thereof) the Clerk shall, if the whereabouts of the person by whom the sum of money was lodged are known, notify such person of the making of the said order and of the amount of money which was directed to be forfeited.
Where such amount is less than the sum of money lodged the balance shall be repayable to such person.
Enforcement of order - by distress
6. (1) Where an order to estreat a recognisance has not been complied with, the Court may, at any time after the expiration of the time allowed for payment or, if no such time was allowed, at any time after the making of the order to estreat, issue a warrant in the Form 27.6 Schedule B to levy the amount due by any person under the order by distress and sale of the goods of such person.
3(2) At any time after the issue of such warrant of distress the said superintendent may, having first given at least seven days' notice of the application (in the Form 27.7 Schedule B) to the person against whom the warrant of distress was issued (the respondent) and having lodged the original of that Form with the Clerk, apply to the Court for the issue of a warrant to commit the respondent to prison, and the Court may, if satisfied on hearing the applicant that it was found impossible to execute that warrant of distress, issue a warrant (Form 27.8, Schedule B) to commit the respondent to prison for a term not exceeding the appropriate period specified in the scale set out in Order 23, r.7 of these Rules, and thereupon the applicant shall return the warrant of distress to the Court for cancellation.
In case of peace recognisance - fresh bond may be required
7. Where the Court estreats as against the principal party a recognisance to keep the peace or to be of good behaviour or to keep the peace and to be of good behaviour it may, in addition to estreating the recognisance, order the principal party to enter into a fresh recognisance during the period for which it would have remained in force but for the order to estreat.
PROCEDURE UNDER BAIL ACT 1997
Estreatment and forfeiture
8. (a) Where an accused person who is admitted to bail on his or her entering into a recognisance with or without a surety or sureties conditioned for his or her appearance before a specified court on a specified date and at a specified time and place fails to appear in accordance with his or her recognisance and the court issues a warrant for the arrest of the person, the court shall order the recognisance of the person and of any surety or sureties to be estreated and shall order the forfeiture of the amount paid into court by the accused person and any surety or sureties
(b) Where a person is brought before a court pursuant to section 9(6) and the court is satisfied that the person has contravened a condition of his or her recognisance, the court shall order the recognisance of the person and of any surety or sureties to be estreated and the moneys paid into court by the accused person and any surety or sureties or any part thereof to be forfeited.
(c) Notice of the order in the Form 27.9 Schedule B shall be served on the accused and on any surety or sureties by prepaid ordinary post.
9. (a) An application to vary or discharge an estreatment or forfeiture order made under section 9(1) or 9(7) may be made within 21 days of the making of the order. ( Form 27.10 Schedule B). Notice of the application shall be served on the prosecutor by prepaid ordinary post at least seven days before the hearing of the application.
(b) An order varying or discharging an estreatment or forfeiture order shall be in the Form 27.11 Schedule B.
10. Orders for estreatment made under this Act shall be enforced in accordance with rule 6 of this Order.
1 Petty Sessions (Ireland) Act, 1851
2 see the Petty Sessions (Ireland) Act, 1851 (sec. 34)
3 See The Fines Act (Ireland) 1851, [s.31]