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26 2006

CRIMINAL JUSTICE ACT 2006

PART 9

Obligations of Drug Trafficking Offenders to Notify Certain Information

Definitions (Part 9).

87 .— In this Part, unless the context otherwise requires—

“ court” means any court exercising criminal jurisdiction and includes a court-martial;

“imprisonment” includes detention in Saint Patrick’s Institution and a place of detention provided under section 2 of the Prisons Act 1970 , and “prison” shall be construed accordingly;

“ prescribed” means prescribed by regulations made by the Minister under this Act;

“ relevant date” means the date of conviction for the drug trafficking offence concerned;

“ remission from the sentence” means, in relation to the sentence imposed on a person, the remission which the person may earn from the sentence under the rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct;

“ sentence” includes a sentence of imprisonment and an order postponing sentence.

Drug trafficking offences for purposes of this Part.

88 .— In this Part “drug trafficking offence” has the meaning it has in section 3(1) (as amended by section 86 ) of the Criminal Justice Act 1994 but does not include such an offence unless the person convicted of it has, in respect thereof, been sentenced to imprisonment for a period of more than one year.

Persons subject to the requirements of this Part.

89 .— (1) Without prejudice to subsections (2) and (3) and section 95 , a person is subject to the requirements of this Part if he or she is convicted on indictment of a drug trafficking offence after the commencement of this Part.

(2) A person is also subject to the requirements of this Part if he or she has been convicted on indictment of a drug trafficking offence before the commencement of this Part and, at that commencement, the sentence to be imposed on the person in respect of the offence has yet to be determined.

(3) If a person has been convicted on indictment of a drug trafficking offence before the commencement of this Part and, at that commencement, a sentence has been imposed on the person in respect of the offence and—

(a) the person is serving the sentence in prison,

(b) the person is temporarily released under section 2 of the Criminal Justice Act 1960 , or

(c) the sentence is otherwise still in force or current,

the Circuit Court, in the circuit where the person ordinarily resides or has his or her most usual place of abode, may, on application to it in that behalf by a member of the Garda Síochána not below the rank of superintendent, order that the person shall be subject to the requirements of this Part if it considers that the interests of the common good so require and that it is appropriate in all the circumstances of the case.

(4) An application under subsection (3) may be made within a period of 2 months, or such longer period as the Circuit Court may permit, of the commencement of this Part.

Period for which person is subject to requirements of this Part and related matters.

90 .— (1) A person who, by reason of section 89 , is subject to the requirements of this Part shall be so subject for the period referred to in subsection (3) or, in the case of a person referred to in subsection (2) or (3) of section 89 , so much (if any) of that period as falls after the commencement of this Part.

(2) Subsection (1) is subject to section 93 .

(3) The period mentioned in subsection (1) is the period, beginning with the relevant date, of—

(a) 12 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life,

(b) 7 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than 10 years but not one of imprisonment for life,

(c) 5 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than 5 years but not more than 10 years,

(d) 3 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than one year but not more than 5 years,

(e) one year if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for any term, the operation of the whole of which is suspended (but, if the operation of that term is revived by the court, whichever of the preceding paragraphs is appropriate shall apply instead of this paragraph).

(4) If—

(a) a sentence is imposed on a person in respect of a drug trafficking offence, and

(b) at the time of sentencing the person is aged under 18 years,

subsection (3) shall have effect in relation to that person as if for the references to 12 years, 7 years, 5 years, 3 years and one year in that subsection there were substituted references to 6 years, 3[html] years, 2[html] years, 1[html] years and 6 months, respectively.

(5) If a sentence of imprisonment for any term is imposed on the person referred to in subsection (1) in respect of the offence concerned and the operation of a part of that term is suspended—

(a) the part of that term the operation of which is not suspended shall be regarded as the term of imprisonment imposed on that person for the purposes of subsection (3) (but, if the operation of the first-mentioned part of that term is revived by the court, whichever of paragraphs (a), (b), (c) and (d) of subsection (3) is appropriate shall apply without regard to this paragraph),

(b) paragraph (a) extends to a case in which that suspension is provided for subsequent to the imposition of the sentence.

(6) If a person is or has been sentenced in respect of 2 or more drug trafficking offences and the sentences imposed are consecutive or partly concurrent then subsection (3) shall have effect as if—

(a) in the case of consecutive sentences, the sentence imposed in respect of each of the offences were or had been a sentence equal to the aggregate of those sentences,

(b) in the case of partly concurrent sentences, the sentence imposed in respect of each of the offences were or had been a sentence equal to the aggregate of those sentences after making such deduction as is necessary to ensure that no period of time is counted more than once.

(7) Without prejudice to section 93 , a person shall cease to be subject to the requirements of this Part if the conviction in respect of the offence concerned is quashed on appeal or otherwise.

(8) A reference in this section to a sentence imposed on a person shall, if the sentence is varied on appeal, be construed as a reference to the sentence as so varied and, accordingly, the period for which a person is subject to the requirements of this Part, by reason of this section, shall stand reduced or increased, as the case may be, in the event that such a variation is made which results in the sentence falling under a different paragraph of subsection (3) than it did before the variation.

Supply of information to facilitate compliance with this Part.

91 .— The person for the time being in charge of the place where a person subject to the requirements of this Part is ordered to be imprisoned in respect of an offence (whether or not the offence that gave rise to the person’s being subject to those requirements) shall notify in writing—

(a) before the date on which the sentence of imprisonment imposed on the person in respect of the first-mentioned offence expires or, as the case may be, the person’s remission from the sentence begins (“the date of release”), the person that he or she is subject to the requirements of this Part, and

(b) at least 10 days before the date of release, the Commissioner of the Garda Síochána of the fact that that expiry or remission will occur in relation to the person.

Notification requirements.

92 .— (1) A person who is subject to the requirements of this Part shall, before the end of the period of 7 days beginning with—

(a) the relevant date,

(b) if an order is made under section 89 (3) or 95 (3), the date of the order, or

(c) if the relevant date is prior to the commencement of this Part and no such order is made, that commencement,

notify to the Garda Síochána—

(i) his or her name and, where he or she also uses one or more other names, each of those names, and

(ii) his or her home address.

(2) A person who is subject to those requirements shall also, before the end of the period of 7 days beginning with—

(a) the person’s using a name which is not the name, or one of the names, last previously notified by him or her to the Garda Síochána under this section,

(b) any change of his or her home address,

(c) the person’s having resided or stayed, for a qualifying period, at any place in the State, the address of which has not been notified to the Garda Síochána under this section as being his or her current home address, or

(d) the person’s returning to an address in the State, having, immediately prior to such return, been outside the State for a continuous period of 7 days or more,

notify that name, the effect of that change, the address of that place or, as the case may be, the fact of that return to the Garda Síochána.

(3) If a person who is subject to the requirements of this Part intends to leave the State for a continuous period of 7 days or more he or she shall notify the Garda Síochána of that intention and, if known, the address of the place outside the State he or she intends to reside or stay at.

(4) If a person who is subject to the requirements of this Part is outside the State for a continuous period of 7 days or more and did not intend, on leaving the State, to be outside the State for such a continuous period, the person shall, subject to subsection (5), notify the Garda Síochána, before the expiry of a further period of 7 days, reckoned from the 7th day that he or she is so outside the State, of that fact and the address of the place at which he or she is residing or staying outside the State.

(5) Subsection (4) shall not apply if the person concerned has returned to the State before the expiry of the further period of 7 days mentioned in that subsection.

(6) A notification given to the Garda Síochána by any person shall not be regarded as complying with subsection (1), (2), (3) or (4) unless it also states the person’s—

(a) date of birth,

(b) name on the relevant date and, where he or she used one or more other names on that date, each of those names, and

(c) home address on the relevant date.

(7) For the purpose of determining any period for the purposes of subsection (1), (2), (3) or (4), there shall be disregarded any time when the person concerned is—

(a) remanded in custody,

(b) serving a sentence in prison, or

(c) temporarily released under section 2 of the Criminal Justice Act 1960 .

(8) A person may give a notification under this section—

(a) by attending in person at any Garda Síochána station which is a divisional or district headquarters and notifying orally a member of the Garda Síochána at the station of the matters concerned,

(b) by sending, by post, a written notification of the matters concerned to any Garda Síochána station which is such a headquarters, or

(c) by such other means as may be prescribed.

(9) The onus of proof of the sending by post of such a notification shall, in any proceedings for an offence under section 94 (1)(a), lie on the defendant.

(10) A notification under this section shall be acknowledged in writing and that acknowledgement shall be in such form as may be prescribed.

(11) In this section—

“ home address” , in relation to any person, means the address of his or her sole or main residence or, if he or she has no such residence, his or her most usual place of abode or, if he or she has no such abode, the place which he or she regularly visits;

“ qualifying period” means—

(a) a period of 7 days, or

(b) 2 or more periods, in any period of 12 months, which (taken together) amount to 7 days.

Discharge from obligation to comply with requirements of this Part.

93 .— (1) A person who, by reason of sections 89 and 90 , is subject to the requirements of this Part for a period of 12 years or 6 years (in the case of a person to whom section 90 (4) applies) may apply to the court for an order discharging the person from the obligation to comply with those requirements on the ground that the interests of the common good are no longer served by his or her continuing to be subject to them.

(2) An application under this section shall not be made before the expiration of the period of 8 years, or 4 years in the case of a person to whom section 90 (4) applies, from the date of the applicant’s release from prison.

(3) The applicant shall, not later than the beginning of such period before the making of the application as may be prescribed, notify the superintendent of the Garda Síochána of the district in which he or she ordinarily resides or has his or her most usual place of abode of his or her intention to make an application under this section.

(4) That superintendent or any other member of the Garda Síochána shall be entitled to appear and be heard at the hearing of that application.

(5) On the hearing of an application under this section, the court shall, if it considers that it is appropriate to do so in all the circumstances of the case, make an order discharging the applicant from the obligation to comply with the requirements of this Part.

(6) In considering an application under this section, the court may have regard to any matter that appears to it to be relevant and may, in particular, have regard to the character of the applicant, his or her conduct after conviction for the offence concerned and the offence concerned.

(7) If the court makes an order discharging the applicant from the obligation to comply with the requirements of this Part, the court shall cause the Garda Síochána to be notified, in writing, of that discharge.

(8) The jurisdiction of the court in respect of an application under this section may be exercised by the judge of the circuit where the applicant ordinarily resides or has his or her most usual place of abode.

(9) Proceedings under this section shall be heard otherwise than in public.

(10) In this section—

“applicant” means the person referred to in subsection (1);

“ court” means the Circuit Court;

“ date of the applicant’s release from prison” means the date on which the applicant’s sentence of imprisonment for the purposes of section 90 (3) expires or, as the case may be, his or her remission from the sentence begins.

Offences in connection with notification requirements.

94 .— (1) A person who—

(a) fails, without reasonable excuse, to comply with subsection (1), (2), (3) or (4) of section 92 or section 95 (1), or

(b) notifies to the Garda Síochána, in purported compliance with that subsection (1), (2), (3) or (4) or section 95 (1), as may be appropriate, any information which he or she knows to be false or misleading in any respect,

shall be guilty of an offence.

(2) A person is guilty of an offence under subsection (1)(a) on the day on which he or she first fails, without reasonable excuse, to comply with subsection (1), (2), (3) or (4), as the case may be, of section 92 or section 95 (1) and continues to be guilty of it throughout any period during which the failure continues; but a person shall not be prosecuted under that provision more than once in respect of the same failure.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.

(4) In proceedings for an offence under subsection (1)(a) a statement on oath by a member of the Garda Síochána referred to in subsection (5) that no notification of the matters concerned was given by the defendant to the Garda Síochána by any of the means referred to in section 92 (8) shall, until the contrary is shown, be evidence that no such notification was given by the defendant.

(5) The member of the Garda Síochána referred to in subsection (4) is a member not below the rank of sergeant who, from his or her evidence to the court, the court is satisfied—

(a) is familiar with the systems operated by the Garda Síochána for recording the fact that particular information has been received by them, and

(b) has made all proper inquiries in ascertaining whether a notification by the defendant of the matters concerned was received by the Garda Síochána.

Application of this Part to persons convicted outside State.

95 .— (1) If—

(a) a person has been convicted, in a place other than the State, of an offence,

(b) the act constituting the offence concerned would, if done in the State, constitute a drug trafficking offence (within the meaning of this Part) under the law of the State, and either—

(i) the person would, accordingly, be subject to the requirements of this Part by reason of subsection (1) or (2) of section 89 , or

(ii) at the commencement of this Part, the person, as a person who has been convicted of an offence mentioned in paragraph (a), is required, under the law of the first-mentioned place in that paragraph (however that requirement is described in that law), to notify to the police in that place information of a similar nature to that required to be notified by a person otherwise subject to the requirements of this Part,

and

(c) the person is, at the time of the conviction, or thereafter becomes, resident in the State,

he or she shall, before the end of the period specified in subsection (2), notify to the Garda Síochána—

(I) his or her name and, where he or she also uses one or more other names, each of those names,

(II) his or her home address, and

(III) the fact of his or her conviction for the offence referred to in paragraph (a).

(2) The period referred to in subsection (1) is the period of 7 days beginning with—

(a) in case the person is already resident in the State upon his or her so first returning and paragraph (c) does not apply, the date on which the person first returns to the State after being convicted of the offence concerned,

(b) in case the person is not so resident and paragraph (c) does not apply, the date on which the person first becomes resident in the State after being convicted of the offence concerned, or

(c) in case the date on which the person so first returns to, or becomes resident in, the State is prior to the commencement of this Part, the commencement of this Part.

(3) The Circuit Court, in the circuit where a person to whom subsection (1) applies ordinarily resides or has his or her most usual place of abode, on application to it in that behalf by a member of the Garda Síochána not below the rank of superintendent, may order that the person shall be subject to the requirements of this Part if it considers that the interests of the common good so require and that it is appropriate in all the circumstances of the case.

(4) An application under subsection (3) may be made within a period of—

(a) 2 months of the date of the notification under subsection (1), or

(b) if no such notification is given, 6 months of the date specified in paragraph (a), (b) or (c), as may be appropriate, of subsection (2),

or such longer period as the Circuit Court may permit.

(5) For the purposes of this section, a person shall be deemed to be resident in the State if he or she is ordinarily resident, or has his or her principal residence, in the State, or is in the State for a qualifying period.

(6) Where a person to whom this section applies is charged with an offence under section 94 , he or she shall, whether or not he or she would be treated for the purposes of section 94 as having a reasonable excuse apart from this subsection, be treated for those purposes as having a reasonable excuse if he or she believed that the act constituting the offence referred to in subsection (1) would not, if done in the State, constitute any drug trafficking offence (within the meaning of this Part) under the law of the State.

(7) For the purposes of subsection (6), it is immaterial whether a belief is justified or not if it is honestly held.

(8) Subsections (8) to (10) of section 92 shall apply to a notification under subsection (1) as they apply to a notification under that section.

(9) In this section—

“ police ” means, in relation to the first-mentioned place in subsection (1), any police force in that place, or a member thereof, whether that force is organised at a national, regional or local level;

“ home address” and “qualifying period” have the same meanings as they have in section 92 .

Certificate as evidence of person’s being subject to requirements of this Part.

96 .— (1) If the conviction, after the commencement of this Part, of a person for an offence gives rise or may give rise to his or her becoming subject to the requirements of this Part, the court before which he or she is convicted of the offence shall forthwith, after the conviction, issue to each of the persons referred to in subsection (6) a certificate stating—

(a) that the person has been convicted of the offence,

(b) the sentence, if any, imposed on the person in respect of the offence, and

(c) that the person has become or, as may be appropriate, may become subject to the requirements of this Part.

(2) If a sentence is imposed on a person in respect of the offence referred to in subsection (1) after a certificate relating to that offence has been issued under that subsection, the court which imposed the sentence shall forthwith, after the imposition of the sentence, issue to each of the persons referred to in subsection (6) a certificate stating the sentence that has been imposed on the person.

(3) A court that makes an order under section 89 (3) or 95 (3) in respect of a person shall forthwith, after the making of the order, issue to each of the persons referred to in subsection (6) a certificate stating—

(a) the offence for which the person has been convicted that gave rise to his or her becoming subject to the requirements of this Part,

(b) the sentence imposed on the person in respect of that offence, and

(c) that the person has become subject to the requirements of this Part.

(4) If—

(a) the conviction referred to in subsection (1) or (3)(a) insofar as it relates to an order made under section 89 (3) is quashed on appeal or otherwise, or

(b) the sentence imposed on foot of that conviction is varied on appeal or otherwise,

the court which quashes the conviction or varies the sentence shall forthwith, after the quashing of the conviction or the variation of the sentence, issue to each of the persons referred to in subsection (6) a certificate stating that the conviction has been quashed or stating the variation that has been made in the sentence.

(5) A certificate purporting to be issued under subsection (1), (2), (3) or (4) shall, in any proceedings, be evidence of the matters stated in it without proof of the signature of the officer of the court purporting to sign it or that that person was authorised to sign it.

(6) The persons referred to in subsections (1), (2), (3) and (4) are—

(a) the Garda Síochána,

(b) the person convicted of the offence concerned, and

(c) where appropriate, the person for the time being in charge of the place where the convicted person is ordered to be imprisoned.

(7) The mode of proving a conviction or sentence authorised by subsection (5) shall be in addition to, and not in substitution for, any other authorised mode of proving such conviction or sentence.

(8) Rules of court may make provision in relation to the form of certificates under this section and the manner in which they may be issued.

Proof of foreign conviction in certain cases.

97 .— (1) In proceedings against a person for an offence under section 94 (where the person is a person referred to in section 95 (1)), the production to the court of a document that satisfies the condition referred to in subsection (2) and which purports to contain either or both—

(a) particulars of the conviction in a state, other than the State, of that person for an offence and of the act constituting the offence,

(b) a statement that, on a specified date, that person was subject to the first-mentioned requirement in section 95 (1)(b)(ii),

shall, without further proof, be evidence, until the contrary is shown, of the matters stated therein.

(2) The condition mentioned in subsection (1) is that the document concerned purports to be signed or certified by a judge, magistrate or officer of the state referred to in that subsection and to be authenticated by the oath of some witness or by being sealed with the official seal of a minister of state of that state (judicial notice of which shall be taken by the court).

(3) The condition mentioned in subsection (1) shall be regarded as being satisfied without proof of the signature or certification, and the authentication of it, that appears in or on the document.