Order 31

Proceedings Under - Criminal Justice Act 1984, etc.

Proceedings under

- Criminal Justice Act 1984

- Criminal Justice Act 2006, section 5 

- International Criminal Court Act 2006, sections 50 and 50A 

- Criminal Justice (Mutual Assistance) Act 2008, sections 79, 79A and 79B

- Criminal Procedure Act 2010, sections 16 and 17 

- Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 S.I. No. 567 of 2016 



1. (1) These Rules, which shall come into operation on the 22nd day of December, 2016, may be cited as the District Court (Criminal Justice (Forensic Evidence and DNA Database System) Act 2014) Rules 2016.

(2) These Rules shall be construed together with the District Court Rules 1997 (S.I. No. 93 of 1997) and all other District Court Rules.

(3) The District Court Rules as amended by these Rules may be cited as the District Court Rules 1997 to 2016.

2. Proceedings begun in the District Court under the Criminal Justice (Forensic Evidence) Act 1990 before the coming into operation of section 6 of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 may be continued and completed as if these Rules had not come into operation.

3. The District Court Rules 1997 (S.I. No. 93 of 1997) are amended:

(i) by the substitution for Order 31 of the Order set out in Schedule 1,

(...)

Schedule 1

 

“Order 31

Proceedings under

- Criminal Justice Act 1984

- Criminal Justice Act 2006, section 5

- International Criminal Court Act 2006, sections 50 and 50A

- Criminal Justice (Mutual Assistance) Act 2008, sections 79, 79A and 79B

- Criminal Procedure Act 2010, sections 16 and 17

- Criminal Justice (Forensic Evidence and DNA Database System) Act 2014

 

Definitions

1. In this Order—

the “Act of 1984” means the Criminal Justice Act 1984 (No. 22 of 1984);

the “Act of 2006” means the Criminal Justice Act 2006 (No. 26 of 2006);

the “Act of 2008” means the Criminal Justice (Mutual Assistance) Act 2008 (No. 7 of 2008);

the “Act of 2010” means the Criminal Procedure Act 2010 (No. 27 of 2010); the “Act of 2014” means the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (No. 11 of 2014);

“Commissioner” means the Commissioner of the Garda Síochána;

each of the expressions “body”, “DNA Database System”, “DNA profile”, “intimate sample”, “non-intimate sample” and “reference index” has the same meaning as in section 2(1) of the Act of 2014;

“protected person” has the same meaning as in section 2(1), subject to section 2(2), of the Act of 2014. 

 

Appeals against extension of period of retention or refusal of

2. (1) An appeal under:

(a) section 81(11) of the Act of 2014 against the Commissioner’s authorisation under section 81(4), section 81(5), section 81(6) or 81(8) of the Act of 2014 extending a period of retention (save where the person to whom the appeal relates is a child (including a child who is a protected person)),

(b) section 83(9) of the Act of 2014 against a refusal or deemed refusal of an application for removal of a DNA profile from the DNA Database System (save where the person to whom the appeal relates is a child (including a child who is a protected person)), or

(c) section 8A(6) of the Act of 1984 (inserted by section 103 of the Act of 2014) against the Commissioner’s authorisation under section 8A(3) or section 8A(4) of the Act of 1984 extending a period of retention

shall be brought before the Court by the issue and service on the Commissioner as respondent of a notice of appeal in the Form 31.1, 31.1A or 31.1B, Schedule B, as appropriate. Such notice shall be served upon the respondent at least seven days before the date fixed for the hearing of the appeal. 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 of the appeal.

(2) An appeal under section 81(11) or section 83(9) of the Act of 2014 or section 8A(6) of the Act of 1984 shall be heard otherwise than in public. 

 

Order of the Court

3. The order of the Court on the appeal shall be in the Form 31.2, Schedule B. 

 

Application for order to arrest

4. (1) An application under section 10 of the Act of 1984 for an Order to arrest shall be made by the information on oath and in writing, in the Form 31.3, Schedule B, of a member of the Garda Síochána not below the rank of superintendent.

(2) An application under section 16 or, as the case may be, section 17, of the Act of 2010 for an Order authorising arrest shall be made by the information on oath and in writing, in the Form 31.10, Schedule B, of a member of the Garda Síochána not below the rank of superintendent, and every such application shall be made and heard in accordance with Order 12, rule 4. 

 

Order to arrest

5. (1) The warrant of the Court where an application under section 10 of the Act of 1984 is granted shall be in the Form 31.4, Schedule B.

(2) The order of the Court granting an application under section 16 or, as the case may be, section 17, of the Act of 2010 shall be in the Form 31.11, Schedule B. 

 

Application to extend direction under section 5(9) of 2006 Act

6. An application under section 5(9) of the Act of 2006 by a member of the Garda Síochána not below the rank of superintendent for an order continuing in force a direction under section 5(3) of the Act shall be by information on oath of the member concerned and if in writing shall be in the Form 31.7, Schedule B. Such application shall be made to a Judge of the District Court assigned to the court district wherein is situated the place in respect of which the direction was given. The information shall specify the means by which notice of the informant’s intention to make the application was given to the person or persons specified in section 5(12) of the Act of 2006 or shall state that it has not been reasonably practicable to give such notice. 

 

Application to be heard

7. Where the owner or occupier of the place concerned in an application under section 5(9) of the Act of 2006 intends to apply to be heard by the Court on the application, the owner or occupier shall deliver to the informant and the Clerk before the hearing of the application a notice of such intention in the Form 31.8, Schedule B, provided that the Judge may dispense with the requirement of such notice where he considers it appropriate to do so. Where the owner or occupier of the place concerned has given such notice, the Court may adjourn the application to such time as may be specified so as to give the owner or occupier of the place concerned an opportunity to be heard on the application in accordance with section 5(13) of the Act of 2006. 

 

Order of the Court

8. An order of the Court granting the application shall be in the Form 31.9, Schedule B. 

 

Applications by information under the Act of 2008 or the Act of 2014

9. (1) Save where the person to whom the application relates is a child (including a child who is a protected person), an application for any of the following orders may be made to the Court by information on oath and in writing of the applicant in the Form 31.12, Schedule B:

(i) an order under section 16(6) of the Act of 2014;

(ii) a warrant under section 25(10) of the Act of 2014;

(iii) an order under section 35(5) of the Act of 2014;

(iv) an order under section 56(3) of the Act of 2014;

(v) an order under section 79B(6) of the Act of 2008 (inserted by section 134 of the Act of 2014);

(vi) an order under section 50A(6) of the International Criminal Court Act 2006 (inserted by section 140 of the Act of 2014).

(2) Where the person to whom the application relates is a child (including a child who is a protected person), an application for any of the orders mentioned in sub-rule (1) may be made to the Children Court by information on oath and in writing of the applicant in the Form 31.12, Schedule B, with the necessary modifications. 

 

Application under section 16 of the Act of 2014

(3) An information sworn for the purposes of section 16(1) of the Act of 2014 shall include details of (as the case may be):

(i) the facts grounding the matters mentioned in section 16(4)(a)to (d) of the Act of 2014;

(ii) the facts which establish that one of the conditions specified in section 16(1) of the Act of 2014 is satisfied, and

(iii) the means by which and time at which, the protected person concerned and any parent or guardian of that person (other than a parent or guardian to whom section 15(2) of the Act of 2014 applies), was informed in accordance with section 16(2) of the Act of 2014 of the intention to make the application (including the time and place at which it was intended to make the application), and

(iv) the rank of the applicant.

(4) Any application under section 16(3) of the Act of 2014 may be made viva voce at the hearing and shall be determined before consideration of the application under section 16(1) of the Act of 2014.

(5) Where the Court considers it necessary, it may adjourn the hearing of the application and direct a further notification to a parent or guardian of the protected person concerned.

(6) Any application under section 16(7) of the Act of 2014 may be made viva voce at the hearing of the application under section 16(1) of the Act of 2014 and a warrant issued on foot of such application shall be in the Form 31.13, Schedule B. 

 

Application under section 25 of the Act of 2014

(7) An information sworn for the purposes of section 25(10) of the Act of 2014 shall include details of:

(i) the facts which establish that each of the conditions specified in section 25(11)(a)to(d) of the Act of 2014 is satisfied, and

(ii) the rank of the applicant.

(8) A warrant issued on foot of such application shall be in the Form 31.14, Schedule B. 

 

Application under section 35 of the Act of 2014

(9) An information sworn for the purposes of section 35(2) of the Act of 2014 shall include details of:

(i) the facts which establish that each of the conditions specified in section 35(5)(a)to(c) of the Act of 2014 is satisfied, and

(ii) the facts which establish compliance with section 35(3) of the Act of 2014 or, as the case may be, grounding an opinion mentioned in section 35(4) of the Act of 2014, and

(iii) where an application is intended to be made under section 35(7) of the Act of 2014, the grounds for believing orders authorising (i) the entry and search of a place where it is believed the body of the deceased person concerned is located, and/or (ii) if appropriate, the seizure of the body of that person, are necessary for the taking of the sample concerned, and

(iv) the rank of the applicant.

(10) Any application under section 35(7) of the Act of 2014 may be made viva voce at the hearing and shall not be determined before consideration of the application under section 35(2) of the Act of 2014, and any order made on an application under section 35(7) of the Act of 2014 shall be in the Form 31.15, Schedule B.

(11) Where the Court considers it necessary, it may adjourn the hearing of the application and direct a further notification to a member of the family of the deceased person concerned. 

 

Application under section 56 of the Act of 2014

(12) An information sworn for the purposes of section 56(1) of the Act of 2014 shall include details of:

(i) the facts grounding the matters mentioned in section 56(2)(a)to (d) of the Act of 2014;

(ii) the attempts made to secure the consent mentioned in section 54(4) of the Act of 2014 or, as the case may be, of the existence of the circumstances described in section 54(5) of the Act of 2014;

(iii) the rank of the applicant.

 

Application under section 79B of the Act of 2008

(13) An information sworn for the purposes of section 79B of the Act of 2008 shall include details of:

(i) the facts which establish that the request for the identification evidence concerned complies with section 79(1) of the Act of 2008;

(ii) the facts grounding each of the matters mentioned in paragraphs (i) to (iii) of section 79B(4)(b) of the Act of 2008;

(iii) the facts which establish that one of the conditions mentioned in section 79B(1) of the Act of 2008 is satisfied, and

(iv) the rank of the applicant.

 

Application under section 50A(6) of the International Criminal Court Act 2006

(14) An information sworn for the purposes of section 50A(1) of the International Criminal Court Act 2006 (inserted by section 140 of the Act of 2014) shall include details of:

(i) the facts which establish that the request for the identification evidence concerned complies with section 50(2) and section 50(3) of the International Criminal Court Act 2006;

(ii) the facts grounding each of the matters mentioned in paragraphs (i) to (iii) of section 50(4)(b) of the International Criminal Court Act 2006;

(iii) the facts which establish that one of the conditions mentioned in section 50A(1) of the International Criminal Court Act 2006 is satisfied, and

(iv) the rank of the applicant.

 

Applications by notice of application under the Act of 2008 or the Act of 2014

10. (1) An application for any of the following orders under the Act of 2014 may be made to the Court by the issue and service of a notice in the Form 31.5, Schedule B:

(i) an order under section 34(6) of the Act of 2014;

(ii) an order under section 39(4) of the Act of 2014;

(iii) an order under section 93(1) of the Act of 2014;

(iv) an order under section 93(2) of the Act of 2014;

(v) an order under section 93(3) of the Act of 2014;

(vi) an order under section 79(11A) of the Act of 2008 (inserted by section 132 of the Act of 2014);

(vii) an order under section 79A(5) or section 79A(16) of the Act of 2008 (inserted by section 133 of the Act of 2014)

(viii) an order under section 50(13A) of the International Criminal Court Act 2006 (inserted by section 139 of the Act of 2014).

(2) Such notice shall be served upon the respondent, i.e. the person from whom the sample was taken or is intended to be taken or if that person is a protected person, if appropriate, the person who gave consent to the taking of the sample concerned from the protected person, (or in the case of identification evidence, the person from whom the identification evidence concerned was taken, and any person who gave consent to the taking of that identification evidence from that person), at least seven days before the date fixed for hearing the application.

(3) Service of the notice shall be effected by a member of the Garda Síochána in accordance with the relevant provisions of Order 10. In all other cases service may be effected in accordance with the provisions of Order 10 or, in case of urgency, by ordinary post.

(4) When service 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 said date of hearing. 

 

Appeal under the Act of 2014

11. An appeal to the Court under section 77(6) of the Act of 2014 shall be brought in accordance with Order 40D.”