Criminal Justice (Terrorist Offences) Act 2005 (2005_act_2) | IE

ISB Act 2005-03-08

Schedule 1 Criminal Justice (Terrorist Offences) Act 2005 Open official source

SCHEDULE 1

Section 4.

PART 1

TREOIRCHINNEADH ÓN gCOMHAIRLE 2002/475 CGB

an 13 Meitheamh 2002

maidir leis an sceimhlitheoireacht a chomhrac

TÁ COMHAIRLE AN AONTAIS EORPAIGH,

Ag féachaint don Chonradh ag bunú an Aontais Eorpaigh, agus go háirithe Airteagal 29, Airteagal 31(e) agus Airteagal 34(2)(b) de,

Ag féachaint don togra ón gCoimisiún11 IO C 332, 27.11.2001, Ich. 300.,

1 IO C 332, 27.11.2001, Ich. 300.

Ag féachaint don Tuairim ó Pharlaimint na hEorpa22 Tuairim a tugadh ar an 6 Feabhra 2002 (nach bhfuil foilsithe fós san Iris Oifigiúil).,

2 Tuairim a tugadh ar an 6 Feabhra 2002 (nach bhfuil foilsithe fós san Iris Oifigiúil).

De bhrí

(1) Go bhfuil an tAontas Eorpach fothaithe ar na luachanna uilechoiteanna arb iad dínit an duine, an tsaoirse, an comhionannas agus an dlúthpháirtíocht, an urraim do chearta an duine agus do shaoirsí bunúsacha. Tá sé bunaithe ar phrionsabal an daonlathais agus ar phrionsabal an smacht reachta, prionsabail is coiteann do na Ballstáit.

(2) Tá an sceimhlitheoireacht ar cheann de na sáruithe is tromchúisí ar na prionsabail sin. Daingníonn Dearbhú La Gomera arna ghlacadh ag an gcruinniú neamhfhoirmiúil den Chomhairle ar an 14 Deireadh Fómhair 1995 go bhfuil an sceimhlitheoireacht ina bagairt ar an daonlathas, ar shaorfheidhmiú chearta an duine agus ar an bhforbraíocht eacnamaíoch agus sóisialta.

(3) Is páirtithe na Ballstáit uile nó cuid díobh i roinnt coinbhinsiún a bhaineann leis an sceimhlitheoireacht. De réir Choinbhinsiún Chomhairle na hEorpa an 27 Eanáir 1977 maidir leis an Sceimhlitheoireacht a Dhíothú ní cionta polaitiúla iad cionta sceimh litheoireachta ná ní cionta iad atá bainteach le cionta polaitiúla ná ní tucaidí polaitiúla is siocair leo. Tá Coinbhinsiún maidir le buamálacha sceimhlitheoireachta a dhíothú an 15 Nollaig 1997 agus Coinbhinsiún maidir le maoiniú na sceimhlitheoireachta a dhíothú an 9 Nollaig 1999 glactha ag na Náisiúin Aontaithe. Tá dréachtchoinbhinsiún domhanda in aghaidh na sceimhlitheoireachta á dhréachtú faoi láthair sna Náisiúin Aontaithe.

(4) Ag leibhéal an Aontais Eorpaigh, ghlac an Chomhairle ar an 3 Nollaig 1998 Plean Gníomhaíochta na Comhairle agus an Choimisiúin maidir leis an dóigh is fearr chun forálacha Chonradh Amstardam a chur chun feidhme a bhaineann le limistéar saoirse, slándála agus ceartais33 IO C 19, 23.1.1999, Ich. 1.. Ba chóir aird a thabhairt freisin ar Chonclúidí ón gComhairle an 20 Meán Fómhair 2001 agus ar phlean gníomhaíochta chun an sceimhlitheoireacht a chomhrac ón gComhairle Eorpach Urghnách an 21 Meán Fómhair 2001. Rinneadh tagairt don sceimhlitheoireacht i gconclúidí ón gComhairle Eorpach in Tampere an 15 agus 16 Deireadh Fómhair 1999, agus ón gComhairle Eorpach in Santa María da Feira an 19 agus 20 Meitheamh 2000. Tá sí luaite freisin sa chumarsáid ón gCoimisiún chuig an gComhairle agus Parlaimint na hEorpa i dtaca le tabhairt suas chun dáta leathbhliantúil an scórchláir chun an dul chun cinn a athbhreithniú maidir le limistéar “saoirse, slándála agus ceartais” a chruthú san Aontas Eorpach (dara leath de 2000). Fairis sin, ar an 5 Meán Fómhair 2001 ghlac Parlaimint na hEorpa moladh maidir le ról an Aontais Eorpaigh sa chomhrac in aghaidh na sceimhlitheoireachta. Ina theannta sin, ba chóir a mheabhrú gur chomhairligh na príomhthíortha tionsclaithe (G7) agus an Rúis ar an 30 Iúil 1996 ag teacht le chéile dóibh i bPáras cúig bheart fichead chun an sceimhlitheoireacht a chomhrac.

3 IO C 19, 23.1.1999, Ich. 1.

(5) Tá an iliomad beart sonrach glactha ag an Aontas Eorpach chun an sceimhlitheoireacht agus an choiriúlacht eagraithe a chomhrac, amhail Cinneadh ón gComhairle an 3 Nollaig 1998 ag cur de chúram ar Europol déileáil le coireanna arna ndéanamh nó ar dóigh go ndéanfaí le linn gníomhaíochtaí sceimhlitheoireachta in aghaidh bheatha an duine, a iomláine coirp, saoirse phearsanta nó maoin44 IO C 26, 30.1.1999, Ich. 22.; Gníomh Comhpháirteach 96/610/CGB ón gComhairle an 15 Deireadh Fómhair 1996 maidir le clár d'inniúlachtaí, scileanna agus sainoilteacht frithsceimhlitheoireachta a chruthú agus a choimeád ar bun chun an comhar frithsceimhlitheoireachta idir na Ballstáit den Aontas Eorpach a éascú55 IO L 273, 25.10.1996, Ich. 1.; Gníomh Comhpháirteach 98/428/CGB ón gComhairle an 29 Meitheamh 1998 maidir le Gréasán Breithiúnach Eorpach a chruthú66 IO L 191, 7.7.1998, Ich. 4., le freagrachtaí i leith cionta sceimhlitheoireachta, agus go háirithe Airteagal 2 de; Gníomh Comhpháirteach 98/733/CGB ón gComhairle an 21 Nollaig 1998 maidir le cion coiriúil a dhéanamh de rannpháirteachas in eagraíocht choiriúil sna Ballstáit den Aontas Eorpach77 IO L 351, 29.12.1998, Ich. 1.; agus Moladh ón gComhairle an 9 Nollaig 1999 maidir le comhar sa chomhrac in aghaidh grúpaí sceimhlitheoireachta a mhaoiniú.88 IO C 373, 23.12.1999, Ich. 1.

4 IO C 26, 30.1.1999, Ich. 22.

5 IO L 273, 25.10.1996, Ich. 1.

6 IO L 191, 7.7.1998, Ich. 4.

7 IO L 351, 29.12.1998, Ich. 1.

8 IO C 373, 23.12.1999, Ich. 1.

(6) Ba chóir comhfhogasú a dhéanamh i ngach Ballstát ar an sainmhíniú de chionta sceimhlitheoireachta, lena n-áirítear na cionta sin a bhaineann le grúpaí sceimhlitheoireachta. Fairis sin, ba chóir pionóis agus smachtbhannaí a léiríonn tromchúis na gcionta sin a leagan síos i leith daoine nádúrtha agus dlítheanacha a bhfuil cionta den sórt sin déanta acu nó atá freagrach as cionta den sórt sin.

(7) Ba chóir rialacha dlínse a bhunú chun a áirithiú gur féidir an cion sceimhlitheoireachta a ionchúiseamh go héifeachtach.

(8) Tá íospartaigh na gcionta sceimhlitheoireachta soghonta agus is gá mar sin bearta sonracha maidir leo.

(9) Toisc nach féidir leis na Ballstáit ag gníomhú go haontaobhach dóibh cuspóirí an ghnímh atá beartaithe a ghnóthú go leordhóthanach agus gur féidir mar sin, toisc an gá atá le cómhalartú, na cuspóirí a ghnóthú níos fearr ag leibhéal an Aontais, féadfaidh an tAontas bearta a ghlacadh i gcomhréir le prionsabal na coimhdeachta. I gcomhréir le prionsabal na comhréireachta, ní théann an Treoirchinneadh seo thar mar is gá d'fhonn na cuspóirí sin a ghnóthú.

(10) Urramaíonn an Treoirchinneadh seo na cearta bunúsacha mar atá arna ráthú sa Choinbhinsiún Eorpach chun Cearta an Duine agus Saoirsí Bunúsacha a Chosaint agus faoi mar a fhabhraíonn siad sna traidisiúin bhunreachtúla is coiteann do na Ballstáit mar phrionsabail de dhlí an Chomhphobail. Urramaíonn an tAontas na prionsabail atá aitheanta in Airteagal 6(2) den Chonradh ar an Aontas Eorpach agus atá le fáil freisin sa Chairt um Chearta Bunúsacha den Aontas Eorpach, go háirithe Caibidil VI de. Ní féidir aon ní sa Treoirchinneadh seo a fhorléiriú amhail is gurb é is aidhm dó cearta nó saoirsí bunúsacha a laghdú nó a shrianadh amhail an ceart chun dul ar stailc, an tsaoirse comhthionóil, comhlachais nó friotail, lena n-áirítear an ceart ag gach duine ceardchumainn a chur ar bun le daoine eile agus bheith ina bhall díobh chun a leasanna a chosaint, agus an ceart chun léirsiú atá gaolmhar leis.

(11) Gníomhartha arna ndéanamh ag fórsaí armtha le linn tréimhsí de choinbhleacht armtha, atá faoi rialú ag an dlí daonnachtúil idirnáisiúnta de réir bhrí na dtéarmaí sin faoin dlí sin, agus gníomhartha arna ndéanamh ag fórsaí armtha an Stáit agus a ndualgais oifigiúla á bhfeidhmiú acu, a mhéad atá siad faoi rialú ag rialacha eile den dlí idirnáisiúnta, níl siad faoi rialú ag an Treoirchinneadh seo,

TAR ÉIS AN TREOIRCHINNEADH SEO A GHLACADH

Airteagal 1 Cionta sceimhlitheoireachta agus cearta agus prionsabail bunúsacha

Airteagal 1

Cionta sceimhlitheoireachta agus cearta agus prionsabail bunúsacha

1. Glacfaidh gach Ballstát na bearta is gá chun a áirithiú go ndéantar na gníomhartha intinneacha dá dtagraítcar thíos i bpointí (a) go (i), mar atá siad sainithe mar chionta faoin dlí náisiúnta, a fhéadfaidh mar gheall ar a gcineál nó a gcomhthéacs, tír nó eagraíocht idirnáisiúnta a dhochrú go tromchúiseach má dhéantar iad d'fhonn

— pobal a imeaglú go tromchúiseach, nó

— iallach a chur go míchuí ar rialtas nó eagraíocht idirnáisiúnta gníomh a dhéanamh nó staonadh ó ghníomh a dhéanamh, nó

— na struchtúir bhunúsacha sóisialta, eacnamaíocha, bunreachtúla nó polaitiúla i dtír nó in eagraíocht idirnáisiúnta a dhíchobhsú go tromchúiseach nó a mhilleadh,

a mheas mar chionta sceimhlitheoireachta

(a) ionsaithe ar bheatha an duine a fhéadfaidh a bheith ina dtrúig bháis;

(b) ionsaithe ar iomláine coirp an duine;

(c) fuadach nó giall a ghabháil;

(d) cur faoi deara saoráid rialtais nó poiblí, córas iompair, saoráid bonneagair, lena n-áirítear saoráid faisnéise, ardán fosaitheach arna shuíomh ar an scairbh ilchríochach, ionad poiblí nó maoin phríobháideach a léirscrios ar dóigh dó beatha an duine a chur i gcontúirt nó mórchaillteanas eacnamaíoch a dhéanamh;

(e) aerárthaigh, longa nó córacha eile iompair daoine nó earraí a ghabháil;

(f) airm, pléascáin nó airm núicléacha bitheolaíocha nó ceimiceacha a mhonarú, a shealbhú, a fháil, a iompar, a sholáthar nó a úsáid, agus taighde a dhéanamh ar airm bhitheolaíocha agus ceimiceacha agus iad a fhorbairt;

(g) substaintí contúirteacha a scaoileadh nó bheith ina shiocair tinte, tuilte nó pléascán arb é is éifeacht dóibh beatha an duine a chur i gcontúirt;

(h) cur isteach ar sholáthar uisce, cumhachta nó aon bhunacmhainne nádúrtha eile nó iad a réabadh arb é is éifeacht dóibh beatha an duine a chur i gcontúirt;

(i) bheith ag bagairt aon cheann de na gníomhartha atá liostaithe in (a) go (h) a dhéanamh.

2. Ní bheidh d'éifeacht ag an Treoirchinneadh seo an oibleagáid a athrú cearta bunúsacha agus prionsabail dlí bunúsacha a urramú mar atá siad leagtha amach in Airteagal 6 den Chonradh ar an Aontas Eorpach.

Airteagal 2 Cionta a bhaineann le grúpa sceimhlitheoireachta

Airteagal 2

Cionta a bhaineann le grúpa sceimhlitheoireachta

1. Chun críocha an Treoirchinnidh seo, ciallaíonn “grúpa sceimhlitheoireachta” grúpa struchtúrtha ina bhfuil beirt nó níos mó, arna bhunú thar tréimhse ama agus a ghníomhaíonn ar dhóigh chomhbheartaithe chun cionta sceimhlitheoireachta a dhéanamh. Ciallaíonn “grúpa struchtúrtha” grúpa nach gcuirtear le chéile de thaisme chun cion a dhéanamh láithreach agus nach gá go bhfuil rólanna arna sainiú go foirmiúil aige dá chuid ball, leanúnachas ballraíochta ná struchtúr forbartha.

2. Glacfaidh gach Ballstát na bearta is gá chun a áirithiú go bhfuil na gníomhartha intinneacha seo a leanas inphionóis

(a) grúpa sceimhlitheoireachta a stiúradh;

(b) bheith rannpháirteach i ngníomhaíochtaí grúpa sceimhlitheoireachta, go fiú trí fhaisnéis nó acmhainní ábhartha a sholáthar, nó trína ghníomhaíochtaí a mhaoiniú ar aon dóigh, agus a bheith ar an eolas go rannchuideoidh an rannpháirteachas sin le gníomhaíochtaí coiriúla an ghrúpa sceimhlitheoireachta.

Airteagal 3 Cionta atá nasctha le gníomhaíochtaí sceimhlitheoireachta

Airteagal 3

Cionta atá nasctha le gníomhaíochtaí sceimhlitheoireachta

Glacfaidh gach Ballstát na bearta is gá chun a áirithiú gur féidir na gníomhartha seo a leanas a áireamh ar na cionta atá nasctha leis an sceimhlitheoireacht

(a) tromghoid d'fhonn ceann de na gníomhartha atá liostaithe in Airteagal 1(1) a dhéanamh;

(b) sracaireacht d'fhonn ceann de na gníomhartha atá liostaithe in Airteagal 1(1) a dhéanamh;

(c) doiciméid riarthacha bréagacha a tharraingt suas d'fhonn ceann de na gníomhartha atá liostaithe in Airteagal 1(1)(a) go (h) agus Airteagal 2(2)(b) a dhéanamh.

Airteagal 4 Gríosú, cabhrú nó neartú, agus iarracht

Airteagal 4

Gríosú, cabhrú nó neartú, agus iarracht

1. Glacfaidh gach Ballstát na bearta is gá chun a áirithiú go ndéantar inphionóis an gníomh chun gríosú nó cabhrú nó neartú le cion a dhéanamh dá dtagraítear in Airteagal 1(1), Airteagail 2 nó 3.

2. Glacfaidh gach Ballstát na bearta is gá chun a áirithiú go ndéantar inphionóis an iarracht chun cion a dhéanamh dá dtagraítear in Airteagal 1(1) agus Airteagal 3, amach ó shealbhú dá bhforáiltear in Airteagal 1(1)(f), agus an cion dá dtagraítear in Airteagal 1(1)(i).

Airteagal 5 Pionóis

Airteagal 5

Pionóis

1. Glacfaidh gach Ballstát na bearta is gá chun a áirithiú go ndéantar inphionóis na cionta dá dtagraítear in Airteagail 1 go 4 le pionóis choiriúla atá éifeachtach, comhréireach agus athchomhairleach ar a bhfuil an t-eiseachadadh le háireamh.

2. Glacfaidh gach Ballstát na bearta is gá chun a áirithiú go ndéantar inphionóis na cionta sceimhlitheoireachta dá dtagraítear in Airteagal 1(1) agus na cionta dá dtagraítear in Airteagal 4, a mhéad a bhaineann siad le cionta sceimhlitheoireachta, le pianbhreitheanna faoi choimeád is troime ná na pianbhreitheanna is infhorchurtha faoin dlí náisiúnta i leith cionta den sórt sin nuair nach bhfuil an intinn speisialta ann atá riachtanach de bhun Airteagal 1(1), ach amháin nuair atá na pianbhreitheanna is infhorchurtha ar na huasphianbhreitheanna is féidir faoin dlí náisiúnta.

3. Glacfaidh gach Ballstát na bearta is gá chun aáirithiú go ndéantar inphionóis na cionta atá liostaithe in Airteagal 2 le pianbhreitheanna faoi choimeád, le huasphianbhreith nach lú ná cúig bliana déag i leith an chiona dá dtagraítear in Airteagal 2(2)(a), agus le huasphianbhreith nach lú ná ocht mbliana i leith na gcionta atá liostaithe in Airteagal 2(2)(b). A mhéad nach dtagraíonn an cion atá luaite in Airteagal 2 (2)(a) ach don ghníomh in Airteagal 1(1)(i), ní lú ná ocht mbliana an uasphianbhreith.

Airteagal 6 Imthosca ar leith

Airteagal 6

Imthosca ar leith

Glacfaidh gach Ballstát na bearta is gá chun a áirithiú gur féidir na cionta dá dtagraítear in Airteagal 5 a laghdú má dhéanann an ciontóir

(a) gníomhaíocht sceimhlitheoireachta a thréigean, agus

(b) faisnéis a sholáthar do na húdaráis riarthacha nó breithiúnacha nach dtiocfadh leo a fháil ar a mhalairt de dhóigh, ag cuidiú leo

(i) éifeachtaí an chiona a chosc nó a mhaolú;

(ii) na ciontóirí eile a shainaithint nó a thabhairt os comhair an dlí;

(iii) fianaise a aimsiú; nó

(iv) cionta eile dá dtagraítear in Airteagail 1 go 4 a chosc.

Airteagal 7 Dliteanas daoine dlítheanacha

Airteagal 7

Dliteanas daoine dlítheanacha

1. Glacfaidh gach Ballstát na bearta is gá chun a áirithiú gur féidir daoine dlítheanacha a chur faoi dhliteanas maidir le haon cheann de na cionta dá dtagraítear in Airteagail 1 go 4 arna dhéanamh ar mhaithe leo ag aon duine, ag gníomhú dó go leithleach nó mar chuid d'orgán an duine dlítheanaigh, a bhfuil ionad ceannaireachta aige laistigh den duine dlítheanach, arna bhunú ar cheann de na nithe seo a leanas

(a) cumhacht ionadaíochta thar ceann an duine dlítheanaigh;

(b) údarás chun cinntí a ghlacadh thar ceann an duine dlítheanaigh,

(c) údarás chun rialú a fheidhmiú laistigh den duine dlítheanach.

2. Ach amháin sna cásanna dá bhforáiltear i mír 1, glacfaidh gach Ballstát na bearta is gá chun a áirithiú gur féidir daoine dlítheanacha a chur faoi dhliteanas nuair is mar gheall ar ghanntanas maoirseachta nó rialú ag duine dá dtagraítear i mír 1 a dhéantar na cionta dá dtagraítear in Airteagail 1 go 4 ar mhaithe leis an duine dlítheanach sin ag duine faoina údarás.

3. Dliteanas de chuid daoine dlítheanacha faoi mhíreanna 1 agus 2, ní eisiafaidh sé imeachtaí coiriúla in aghaidh daoine nádúrtha is déantóirí, gríosóirí nó cúlpháirtithe in aon cheann de na cionta dá dtagraítear in Airteagail 1 go 4.

Airteagal 8 Pionóis in aghaidh daoine dlítheanacha

Airteagal 8

Pionóis in aghaidh daoine dlítheanacha

Glacfaidh gach Ballstát na bearta is gá chun a áirithiú go bhfuil duine dlítheanach atá faoi dhliteanas de bhun Airteagal 7 inphionóis le pionóis atá éifeachtach, comhréireach agus athchomhairleach lena n-áirítear fíneálacha coiriúla nó neamhchoiriúla agus ar a mbeidh pionóis eile le háireamh, amhail

(a) eisiamh ó bheith i dteideal sochair nó cabhair poiblí a fháil;

(b) dícháiliúchán sealadach nó buan ó ghníomhaíochtaí tráchtála a chleachtadh;

(c) cur faoi mhaoirseacht bhreithiúnach;

(d) ordú um foirceannadh breithiúnach;

(e) bunaíochtaí a dhúnadh go sealadach nó go buan a úsáideadh chun an cion a dhéanamh.

Airteagal 9 Dlínse agus ionchúiseamh

Airteagal 9

Dlínse agus ionchúiseamh

1. Glacfaidh gach Ballstát na bearta is gá chun a dhlínse a bhunú maidir leis na cionta uile dá dtagraítear in Airteagail 1 go 4 nuair

(a) a dhéantar an cion go hiomlán nó go páirteach ar a chríoch. Féadfaidh gach Ballstát a dhlínse a fhairsingiú má dhéantar an cion ar chríoch de chuid Ballstáit;

(b) a dhéantar an cion ar bord loinge a bhfuil a bratach ar foluain aici nó ar aerárthach atá cláraithe ansin;

(c) is náisiúnach nó cónaitheoir dá chuid an ciontóir;

(d) a dhéantar an cion ar mhaithe le duine dlítheanach atá bunaithe ar a chríoch;

(e) a dhéantar an cion in aghaidh institiúidí nó phobal an Bhallstáit i gceist nó in aghaidh institiúid den Aontas Eorpach nó comhlacht arna chur ar bun i gcomhréir leis an gConradh ag bunú an Chomhphobail Eorpaigh nó leis an gConradh ar an Aontas Eorpach agus a bhfuil a shuíomh aige sa Bhallstát sin.

2. Nuair a thiteann cion faoi dhlínse Ballstát amháin nó níos mó agus nuair is féidir le haon cheann de na Ballstáit i dtrácht ionchúiseamh go bailí ar bhonn na bhfíoras céanna, rachaidh na Ballstáit i dtrácht i gcomhar le chéile chun a chinneadh cé acu ceann a dhéanfaidh na ciontóirí a ionchúiseamh ionas, más féidir, na himeachtaí a lárú in aon Bhallstát amháin. Chuige sin, féadfaidh na Ballstáit dul ar iontaoibh aon chomhlacht nó meicníocht atá bunaithe san Aontas Eorpach d'fhonn an comhar idir na húdaráis bhreithiúnacha a éascú agus a ngníomhaíocht a chomhordú. Tabharfar aird ar dhóigh leanúnach ar na cúinsí seo a leanas

— is é an Ballstát an Ballstát ar ar a chríoch a rinneadh na gníomhartha,

— is é an Ballstát an Ballstát ar náisiúnach nó cónaitheoir dá chuid an déantóir,

— is é an Ballstát Ballstát tionscnaimh na n-íospartach,

— is é an Ballstát an Ballstát ar ar a chríoch a fuarthas an déantóir.

3. Glacfaidh gach Ballstát na bearta is gá chun a dhlínse a bhunú freisin maidir leis na cionta dá dtagraítear in Airteagail 1 go 4 i gcásanna nuair a dhiúltaíonn sé duine faoi amhras ciona nó duine arna chiontú i gcion den sórt sin a ghéilleadh nó a eiseachadadh chuig Ballstát eile nó chuig tríú tír.

4. Déanfaidh gach Ballstát a áirithiú go bhfolaíonn a dhlínse cásanna ina ndearnadh aon cheann de na cionta dá dtagraítear in Airteagail 2 agus 4 go hiomlán nó go páirteach ar a chríoch, is cuma cá bhfuil an grúpa sceimhlitheoireachta bunaithe nó cá saothraíonn sé a chuid gníomhaíochtaí coiriúla.

5. Ní eisiafaidh an tAirteagal seo dlínse a fheidhmiú in ábhair choiriúla mar atá arna leagan síos ag Ballstát i gcomhréir lena reachtaíocht náisiúnta.

Airteagal 10 Íospartaigh a chosaint agus cuidiú leo

Airteagal 10

Íospartaigh a chosaint agus cuidiú leo

1. Déanfaidh na Ballstáit a áirithiú nach bhfuil imscrúduithe ar na cionta nó ionchúiseamh na gcionta atá folaithe sa Treoirchinneadh seo ag brath ar thuarascáil nó cúiseamh ó dhuine is íospartach, ar a laghad má rinneadh na gníomhartha ar chríoch an Bhallstáit.

2. I dteannta leis na bearta atá leagtha síos i dTreoirchinneadh 2001/220/CGB ón gComhairle an 15 Márta 2001 maidir le seasamh na n-íospartach in imeachtaí coiriúla11 IO L82, 22.3.2001, Ich. 1., glacfaidh gach Ballstát, más gá, gach beart is féidir chun cúnamh iomchuí a áirithiú do theaghlaigh na n-íospartach.

1 IO L82, 22.3.2001, Ich. 1.

Airteagal 11 Cur chun feidhme agus tuarascálacha

Airteagal 11

Cur chun feidhme agus tuarascálacha

1. Glacfaidh na Ballstáit na bearta is gá chun an Treoirchinneadh seo a chomhlíonadh faoi cheann 31 Nollaig 2002.

2. Faoi cheann 31 Nollaig 2002, díreoidh na Ballstáit chuig ArdRúnaíocht na Comhairle agus chuig an gCoimisiún téacs na bhforálacha a thrasuíonn ina ndlí náisiúnta na hoibleagáidí arna bhforchur orthu faoin Treoirchinneadh seo. Ar bhonn tuarascáil arna tarraingt suas ar an bhfaisnéis sin agus ar bhonn tuarascáil ón gCoimisiún, measúnóidh an Chomhairle, faoi cheann 31 Nollaig 2003, an bhfuil na bearta is gá glactha ag na Ballstáit chun an Treoirchinneadh seo a chomhlíonadh.

3. Sonróidh an tuarascáil ón gCoimisiún, ach go háirithe, trasuí na hoibleagáide dá dtagraítear in Airteagal 5(2) i ndlí coiriúil na mBallstát.

Airteagal 12 Cur i bhfeidhm críochach

Airteagal 12

Cur i bhfeidhm críochach

Beidh an treoirchinneadh seo infheidhme ar Ghiobráltar.

Airteagal 13 Teacht i bhfeidhm

Airteagal 13

Teacht i bhfeidhm

Tiocfaidh an Treoirchinneadh seo i bhfeidhm ar lá a fhoilsithe in Iris Oifigiúil na gComhphobal Eorpach.

Arna dhéanamh i Lucsamburg, an 13 Meitheamh 2002.

Thar ceann na Comhairle

An tUachtarán

M. RAJOY BREY

PART 2

(Acts adopted pursuant to Title VI of the Treaty on European Union)

COUNCIL FRAMEWORK DECISION

of 13 June 2002

on combating terrorism

(2002/475/JHA)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Union, and in particular Article 29, Article 31(e) and Article 34(2)(b) thereof,

Having regard to the proposal from the Commission11 OJ C 332 E, 27.11.2001, p. 300.,

1 OJ C 332 E, 27.11.2001, p. 300.

Having regard to the opinion of the European Parliament22 Opinion delivered on 6 February 2002 (not yet published in the Official Journal).,

2 Opinion delivered on 6 February 2002 (not yet published in the Official Journal).

Whereas

(1) The European Union is founded on the universal values of human dignity, liberty, equality and solidarity, respect for human rights and fundamental freedoms. It is based on the principle of democracy and the principle of the rule of law, principles which are common to the Member States.

(2) Terrorism constitutes one of the most serious violations of those principles. The La Gomera Declaration adopted at the informal Council meeting on 14 October 1995 affirmed that terrorism constitutes a threat to democracy, to the free exercise of human rights and to economic and social development.

(3) All or some Member States are party to a number of conventions relating to terrorism. The Council of Europe Convention of 27 January 1977 on the Suppression of Terrorism does not regard terrorist offences as political offences or as offences connected with political offences or as offences inspired by political motives. The United Nations has adopted the Convention for the suppression of terrorist bombings of 15 December 1997 and the Convention for the suppression of financing terrorism of 9 December 1999. A draft global Convention against terrorism is currently being negotiated within the United Nations.

(4) At European Union level, on 3 December 1998 the Council adopted the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice33 OJ C 19, 23.1.1999, p. 1.. Account should also be taken of the Council Conclusions of 20 September 2001 and of the Extra-ordinary European Council plan of action to combat terrorism of 21 September 2001. Terrorism was referred to in the conclusions of the Tampere European Council of 15 and 16 October 1999, and of the Santa María da Feira European Council of 19 and 20 June 2000. It was also mentioned in the Commission communication to the Council and the European Parliament on the biannual update of the score-board to review progress on the creation of an area of ‘freedom, security and justice’ in the European Union (second half of 2000). Furthermore, on 5 September 2001 the European Parliament adopted a recommendation on the role of the European Union in combating terrorism. It should, moreover, be recalled that on 30 July 1996 twenty-five measures to fight against terrorism were advocated by the leading industrialised countries (G7) and Russia meeting in Paris.

3 OJ C 19, 23.1.1999, p. 1.

(5) The European Union has adopted numerous specific measures having an impact on terrorism and organised crime, such as the Council Decision of 3 December 1998 instructing Europol to deal with crimes committed or likely to be committed in the course of terrorist activities against life, limb, personal freedom or property44 OJ C 26, 30.1.1999, p. 22.; Council Joint Action 96/610/JHA of 15 October 1996 concerning the creation and maintenance of a Directory of specialised counter-terrorist competences, skills and expertise to facilitate counter-terrorism cooperation between the Member States of the European Union55 OJ L 273, 25.10.1996, p. 1.; Council Joint Action 98/428/JHA of 29 June 1998 on the creation of a European Judicial Network66 OJ L 191, 7.7.1998, p. 4., with responsibilities in terrorist offences, in particular Article 2; Council Joint Action 98/733/JHA of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union77 OJ L 351, 29.12.1998, p. 1.; and the Council Recommendation of 9 December 1999 on cooperation in combating the financing of terrorist groups88 OJ C 373, 23.12.1999, p. 1..

4 OJ C 26, 30.1.1999, p. 22.

5 OJ L 273, 25.10.1996, p. 1.

6 OJ L 191, 7.7.1998, p. 4.

7 OJ L 351, 29.12.1998, p. 1.

8 OJ C 373, 23.12.1999, p. 1.

(6) The definition of terrorist offences should be approximated in all Member States, including those offences relating to terrorist groups. Furthermore, penalties and sanctions should be provided for natural and legal persons having committed or being liable for such offences, which reflect the seriousness of such offences.

(7) Jurisdictional rules should be established to ensure that the terrorist offence may be effectively prosecuted.

(8) Victims of terrorist offences are vulnerable, and therefore specific measures are necessary with regard to them.

(9) Given that the objectives of the proposed action cannot be sufficiently achieved by the Member States unilaterally, and can therefore, because of the need for reciprocity, be better achieved at the level of the Union, the Union may adopt measures, in accordance with the principle of subsidiarity. In accordance with the principle of proportionality, this Framework Decision does not go beyond what is necessary in order to achieve those objectives.

(10) This Framework Decision respects fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they emerge from the constitutional traditions common to the Member States as principles of Community law. The Union observes the principles recognised by Article 6(2) of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, notably Chapter VI thereof. Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the right to strike, freedom of assembly, of association or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate.

(11) Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision,

HAS ADOPTED THIS FRAMEWORK DECISION

Article 1 Terrorist offences and fundamental rights and principles

Article 1

Terrorist offences and fundamental rights and principles

1. Each Member State shall take the necessary measures to ensure that the intentional acts referred to below in points (a) to (i), as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of

— seriously intimidating a population, or

— unduly compelling a Government or international organisation to perform or abstain from performing any act, or

— seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation,

shall be deemed to be terrorist offences

(a) attacks upon a person's life which may cause death;

(b) attacks upon the physical integrity of a person;

(c) kidnapping or hostage taking;

(d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;

(e) seizure of aircraft, ships or other means of public or goods transport;

(f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons;

(g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life;

(h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life;

(i) threatening to commit any of the acts listed in (a) to (h).

2. This Framework Decision shall not have the effect of altering the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

Article 2 Offences relating to a terrorist group

Article 2

Offences relating to a terrorist group

1. For the purposes of this Framework Decision, ‘terrorist group’ shall mean: a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences. ‘Structured group’ shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.

2. Each Member State shall take the necessary measures to ensure that the following intentional acts are punishable

(a) directing a terrorist group;

(b) participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group.

Article 3

Offences linked to terrorist activities

Each Member State shall take the necessary measures to ensure that terrorist-linked offences include the following acts

(a) aggravated theft with a view to committing one of the acts listed in Article 1(1);

(b) extortion with a view to the perpetration of one of the acts listed in Article 1(1);

(c) drawing up false administrative documents with a view to committing one of the acts listed in Article 1(1)(a) to (h) and Article 2(2)(b).

Article 4 Inciting, aiding or abetting, and attempting

Article 4

Inciting, aiding or abetting, and attempting

1. Each Member State shall take the necessary measures to ensure that inciting or aiding or abetting an offence referred to in Article 1(1), Articles 2 or 3 is made punishable.

2. Each Member State shall take the necessary measures to ensure that attempting to commit an offence referred to in Article 1(1) and Article 3, with the exception of possession as provided for in Article 1(1)(f) and the offence referred to in Article 1(1)(i), is made punishable.

Article 5 Penalties

Article 5

Penalties

1. Each Member State shall take the necessary measures to ensure that the offences referred to in Articles 1 to 4 are punishable by effective, proportionate and dissuasive criminal penalties, which may entail extradition.

2. Each Member State shall take the necessary measures to ensure that the terrorist offences referred to in Article 1(1) and offences referred to in Article 4, inasmuch as they relate to terrorist offences, are punishable by custodial sentences heavier than those imposable under national law for such offences in the absence of the special intent required pursuant to Article 1(1), save where the sentences imposable are already the maximum possible sentences under national law.

3. Each Member State shall take the necessary measures to ensure that offences listed in Article 2 are punishable by custodial sentences, with a maximum sentence of not less than fifteen years for the offence referred to in Article 2(2)(a), and for the offences listed in Article 2(2)(b) a maximum sentence of not less than eight years. In so far as the offence referred to in Article 2(2)(a) refers only to the act in Article 1(1)(i), the maximum sentence shall not be less than eight years.

Article 6 Particular circumstances

Article 6

Particular circumstances

Each Member State may take the necessary measures to ensure that the penalties referred to in Article 5 may be reduced if the offender

(a) renounces terrorist activity, and

(b) provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to

(i) prevent or mitigate the effects of the offence;

(ii) identify or bring to justice the other offenders;

(iii) find evidence; or

(iv) prevent further offences referred to in Articles 1 to 4.

Article 7 Liability of legal persons

Article 7

Liability of legal persons

1. Each Member State shall take the necessary measures to ensure that legal persons can be held liable for any of the offences referred to in Articles 1 to 4 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on one of the following

(a) a power of representation of the legal person;

(b) an authority to take decisions on behalf of the legal person;

(c) an authority to exercise control within the legal person.

2. Apart from the cases provided for in paragraph 1, each Member State shall take the necessary measures to ensure that legal persons can be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission of any of the offences referred to in Articles 1 to 4 for the benefit of that legal person by a person under its authority.

3. Liability of legal persons under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, instigators or accessories in any of the offences referred to in Articles 1 to 4.

Article 8 Penalties for legal persons

Article 8

Penalties for legal persons

Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 7 is punishable by effective, proportionate and dissuasive penalties, which shall include criminal or non-criminal fines and may include other penalties, such as

(a) exclusion from entitlement to public benefits or aid;

(b) temporary or permanent disqualification from the practice of commercial activities;

(c) placing under judicial supervision;

(d) a judicial winding-up order;

(e) temporary or permanent closure of establishments which have been used for committing the offence.

Article 9 Jurisdiction and prosecution

Article 9

Jurisdiction and prosecution

1. Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in Articles 1 to 4 where

(a) the offence is committed in whole or in part in its territory. Each Member State may extend its jurisdiction if the offence is committed in the territory of a Member State;

(b) the offence is committed on board a vessel flying its flag or an aircraft registered there;

(c) the offender is one of its nationals or residents;

(d) the offence is committed for the benefit of a legal person established in its territory;

(e) the offence is committed against the institutions or people of the Member State in question or against an institution of the European Union or a body set up in accordance with the Treaty establishing the European Community or the Treaty on European Union and based in that Member State.

2. When an offence falls within the jurisdiction of more than one Member State and when any of the States concerned can validly prosecute on the basis of the same facts, the Member States concerned shall cooperate in order to decide which of them will prosecute the offenders with the aim, if possible, of centralising proceedings in a single Member State. To this end, the Member States may have recourse to any body or mechanism established within the European Union in order to facilitate cooperation between their judicial authorities and the coordination of their action. Sequential account shall be taken of the following factors

— the Member State shall be that in the territory of which the acts were committed,

— the Member State shall be that of which the perpetrator is a national or resident,

— the Member State shall be the Member State of origin of the victims,

— the Member State shall be that in the territory of which the perpetrator was found.

3. Each Member State shall take the necessary measures also to establish its jurisdiction over the offences referred to in Articles 1 to 4 in cases where it refuses to hand over or extradite a person suspected or convicted of such an offence to another Member State or to a third country.

4. Each Member State shall ensure that its jurisdiction covers cases in which any of the offences referred to in Articles 2 and 4 has been committed in whole or in part within its territory, wherever the terrorist group is based or pursues its criminal activities.

5. This Article shall not exclude the exercise of jurisdiction in criminal matters as laid down by a Member State in accordance with its national legislation.

Article 10 Protection of, and assistance to, victims

Article 10

Protection of, and assistance to, victims

1. Member States shall ensure that investigations into, or prosecution of, offences covered by this Framework Decision are not dependent on a report or accusation made by a person subjected to the offence, at least if the acts were committed on the territory of the Member State.

2. In addition to the measures laid down in the Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings11 OJ L 82, 22.3.2001, p. 1., each Member State shall, if necessary, take all measures possible to ensure appropriate assistance for victims' families.

1 OJ L 82, 22.3.2001, p. 1.

Article 11 Implementation and reports

Article 11

Implementation and reports

1. Member States shall take the necessary measures to comply with this Framework Decision by 31 December 2002.

2. By 31 December 2002, Member States shall forward to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. On the basis of a report drawn up from that information and a report from the Commission, the Council shall assess, by 31 December 2003, whether Member States have taken the necessary measures to comply with this Framework Decision.

3. The Commission report shall specify, in particular, transposition into the criminal law of the Member States of the obligation referred to in Article 5(2).

Article 12 Territorial application

Article 12

Territorial application

This Framework Decision shall apply to Gibraltar.

Article 13 Entry into force

Article 13

Entry into force

This Framework Decision shall enter into force on the day of its publication in the Official Journal.

Done at Luxembourg, 13 June 2002.

For the Council

The President

M. RAJOY BREY

ISB Act 2005-03-08

Schedule 2 Criminal Justice (Terrorist Offences) Act 2005 Open official source

SCHEDULE 2 Offences for purposes of Definitions of “Terrorist Activity” and “Terrorist-Linked Activity”

Offences for purposes of Definitions of “Terrorist Activity” and “Terrorist-Linked Activity”

Section 4.

PART 1

(Paragraph (a) of definition of “terrorist activity”)

Common law offences

1. The following common law offences

(a) murder;

(b) manslaughter;

(c) rape.

Non-fatal offences against the person

2. An offence under any of the following provisions of the Non-Fatal Offences against the Person Act 1997

(a) section 3 (assault causing harm);

(b) section 4 (assault causing serious harm);

(c) section 6 (syringe and other attacks);

(d) section 12 (poisoning);

(e) section 13 (endangerment);

(f) section 14 (endangering traffic);

(g) section 15 (false imprisonment).

Offence of torture

3. Any offence under section 2 of the Criminal Justice (United Nations Convention Against Torture) Act 2000.

Sexual offences

4. An offence under any of the following provisions of the Criminal Law (Rape) (Amendment) Act 1990

(a) section 2 (sexual assault);

(b) section 3 (aggravated sexual assault);

(c) section 4 (rape under section 4).

Criminal damage

5. Any offence under section 2 (damaging property) of the Criminal Damage Act 1991.

Malicious damage

6. An offence under any of the following provisions of the Malicious Damage Act 1861

(a) section 35 (maliciously obstructing railways);

(b) section 36 (obstructing engines or carriages on railways);

(c) section 37 (damaging telegraphs);

(d) section 48 (removing or concealing buoys, etc.).

Offences relating to aircraft and vehicles

7. An offence under any of the following provisions

(a) section 11 of the Air Navigation and Transport Act 1973 (unlawful seizure of aircraft);

(b) section 3 of the Air Navigation and Transport Act 1975 (unlawful acts against the safety of aviation);

(c) section 10 of the Criminal Law (Jurisdiction) Act 1976 (unlawful seizure of vehicles, etc.).

Offences relating to explosives

8. An offence under any of the following provisions of the Explosive Substances Act 1883

(a) section 2 (causing explosion likely to endanger life or damage property);

(b) section 3 (making or possessing, etc., explosives with intent to endanger life or property);

(c) section 4(1) (making or possessing explosives in suspicious circumstances).

Offences relating to firearms and other weapons

9. An offence under any of the following provisions

(a) section 2 of the Firearms Act 1925 (restrictions on possession, use and carriage of firearms);

(b) section 10 of the Firearms Act 1925 (restrictions on manufacture and sale of firearms);

(c) section 15 of the Firearms Act 1925 (possessing firearms or ammunition with intent to endanger life or cause serious injury to property);

(d) section 26 of the Firearms Act 1964 (possessing firearms while taking vehicle without authority);

(e) section 27 of the Firearms Act 1964 (using firearms to resist arrest or aid escape);

(f) section 27A of the Firearms Act 1964 (possessing firearms or ammunition in suspicious circumstances);

(g) section 27B of the Firearms Act 1964 (carrying firearms with criminal intent).

Offences relating to chemical weapons, nuclear material and other dangerous substances

10. An offence under any of the following provisions

(a) section 3 of the Chemical Weapons Act 1997 (chemical weapons);

(b) section 4 of the Chemical Weapons Act 1997 (possession of listed toxic chemicals and precursors);

(c) section 38 of the Radiological Protection Act 1991 (offences relating to nuclear material);

(d) section 61 of the Post Office Act 1908 (prohibition of placing injurious substances in or against post office letter boxes);

(e) section 63(1)(a) of the Post Office Act 1908 (prohibition of sending dangerous substances by post).

Offences under this Act

11. An offence under any of the following provisions of this Act

(a) section 9 (offence of hostage-taking);

(b) section 10 (offence of terrorist bombing);

(c) section 11 (offences against internationally protected persons).

PART 2

(Paragraph (a)(i) of definition of “terrorist-linked activity”)

Aggravated burglary and robbery

12. An offence under any of the following provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001

(a) section 13 (aggravated burglary);

(b) section 14 (robbery).

Blackmail, extortion, etc.

13. Any offence under section 17 (blackmail, extortion and demanding money with menaces) of the Criminal Justice (Public Order) Act 1994.

PART 3

(Paragraph (b)(i) of definition of “terrorist-linked activity”)

Forgery Offences

14. An offence under any of the following provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001 in so far as that offence relates to an instrument within the meaning of paragraph (a), (e), (f), (j), (k), (l), (m), (n), (o) or (p) of the definition of “instrument” in section 24 of that Act

(a) section 25 (forgery);

(b) section 26 (using a false instrument);

(c) section 27 (copying false instrument);

(d) section 28 (using copy of false instrument);

(e) section 29 (custody or control of certain false instruments, etc.).

ISB Act 2005-03-08

Schedule 3 Criminal Justice (Terrorist Offences) Act 2005 Open official source

SCHEDULE 3 International Convention Against the Taking of Hostages

International Convention Against the Taking of Hostages

Section 9.

The States Parties to this Convention,

HAVING IN MIND the purposes and principles of the Charter of the United Nations concerning the maintenance of international peace and security and the promotion of friendly relations and co-operation among States,

RECOGNIZING in particular that everyone has the right to life, liberty and security of person, as set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights,

REAFFIRMING the principle of equal rights and self-determination of peoples as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, as well as in other relevant resolutions of the General Assembly,

CONSIDERING that the taking of hostages is an offence of grave concern to the international community and that, in accordance with the provisions of this Convention, any person committing an act of hostage taking shall either be prosecuted or extradited,

BEING CONVINCED that it is urgently necessary to develop international co-operation between States in devising and adopting effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestations of international terrorism,

Have agreed as follows

Article 1

1. Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages (“hostage-taking”) within the meaning of this Convention.

2. Any person who

(a) Attempts to commit an act of hostage-taking, or

(b) Participates as an accomplice of anyone who commits or attempts to commit an act of hostage-taking

likewise commits an offence for the purposes of this Convention.

Article 2

Each State Party shall make the offences set forth in article 1 punishable by appropriate penalties which take into account the grave nature of those offences.

Article 3

1. The State Party in the territory of which the hostage is held by the offender shall take all measures it considers appropriate to ease the situation of the hostage, in particular, to secure his release and, after his release, to facilitate, when relevant, his departure.

2. If any object which the offender has obtained as a result of the taking of hostages comes into the custody of a State Party, that State Party shall return it as soon as possible to the hostage or the third party referred to in article 1, as the case may be, or to the appropriate authorities thereof.

Article 4

States Parties shall co-operate in the prevention of the offences set forth in article 1, particularly by

(a) Taking all practicable measures to prevent preparations in their respective territories for the commission of those offences within or outside their territories, including measures to prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in the perpetration of acts of taking of hostages;

(b) Exchanging information and co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those offences.

Article 5

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over any of the offences set forth in article 1 which are committed

(a) In its territory or on board a ship or aircraft registered in that State;

(b) By any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory;

(c) In order to compel that State to do or abstain from doing any act; or

(d) With respect to a hostage who is a national of that State, if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 1 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Article 6

1. Upon being satisfied that the circumstances so warrant, any State Party in the territory of which the alleged offender is present shall, in accordance with its laws, take him into custody or take other measures to ensure his presence for such time as is necessary to enable any criminal or extradition proceedings to be instituted. That State Party shall immediately make a preliminary inquiry into the facts.

2. The custody or other measures referred to in paragraph 1 of this article shall be notified without delay directly or through the Secretary-General of the United Nations to

(a) The State where the offence was committed;

(b) The State against which compulsion has been directed or attempted;

(c) The State of which the natural or juridical person against whom compulsion has been directed or attempted is a national;

(d) The State of which the hostage is a national or in the territory of which he has his habitual residence;

(e) The State of which the alleged offender is a national or, if he is a stateless person, in the territory of which he has his habitual residence;

(f) The international intergovernmental organization against which compulsion has been directed or attempted;

(g) All other States concerned.

3. Any person regarding whom the measures referred to in paragraph 1 of this article are being taken shall be entitled

(a) To communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to establish such communication or, if he is a stateless person, the State in the territory of which he has his habitual residence;

(b) To be visited by a representative of that State.

4. The rights referred to in paragraph 3 of this article shall be exercised in conformity with the laws and regulations of the State in the territory of which the alleged offender is present subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 of this article are intended.

5. The provisions of paragraphs 3 and 4 of this article shall be without prejudice to the right of any State Party having a claim to jurisdiction in accordance with paragraph 1(b) of article 5 to invite the International Committee of the Red Cross to communicate with and visit the alleged offender.

6. The State which makes the preliminary inquiry contemplated in paragraph 1 of this article shall promptly report its findings to the States or organization referred to in paragraph 2 of this article and indicate whether it intends to exercise jurisdiction.

Article 7

The State Party where the alleged offender is prosecuted shall in accordance with its laws communicate the final outcome of the proceedings to the Secretary-General of the United Nations, who shall transmit the information to the other States concerned and the international intergovernmental organizations concerned.

Article 8

1. The State Party in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a grave nature under the law of that State.

2. Any person regarding whom proceedings are being carried out in connexion with any of the offences set forth in article 1 shall be guaranteed fair treatment at all stages of the proceedings, including enjoyment of all the rights and guarantees provided by the law of the State in the territory of which he is present.

Article 9

1. A request for the extradition of an alleged offender, pursuant to this Convention, shall not be granted if the requested State Party has substantial grounds for believing

(a) That the request for extradition for an offence set forth in article 1 has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, ethnic origin or political opinion; or

(b) That the person's position may be prejudiced

(i) for any of the reasons mentioned in subparagraph (a) of this paragraph, or

(ii) for the reason that communication with him by the appropriate authorities of the State entitled to exercise rights of protection cannot be effected.

2. With respect to the offences as defined in this Convention, the provisions of all extradition treaties and arrangements applicable between States Parties are modified as between States Parties to the extent that they are incompatible with this Convention.

Article 10

1. The offences set forth in article 1 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, the requested State may at its option consider this Convention as the legal basis for extradition in respect of the offences set forth in article 1. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences set forth in article 1 as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

4. The offences set forth in article 1 shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with paragraph 1 of article 5.

Article 11

1. States Parties shall afford one another the greatest measure of assistance in connexion with criminal proceedings brought in respect of the offences set forth in article 1, including the supply of all evidence at their disposal necessary for the proceedings.

2. The provisions of paragraph 1 of this article shall not affect obligations concerning mutual judicial assistance embodied in any other treaty.

Article 12

In so far as the Geneva Conventions of 1949 for the protection of war victims11 United Nations, Treaty Series, vol. 75, p. 31, 85, 135 and 287. or the Protocols Additional to those Conventions22 Ibid., vol. 1125, pp. 3 and 609. are applicable to a particular act of hostage-taking, and in so far as States Parties to this Convention are bound under those conventions to prosecute or hand over the hostage-taker, the present Convention shall not apply to an act of hostage-taking committed in the course of armed conflicts as defined in the Geneva Conventions of 1949 and the Protocols thereto, including armed conflicts mentioned in article 1, paragraph 4, of Additional Protocol I of 1977, in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

1 United Nations, Treaty Series, vol. 75, p. 31, 85, 135 and 287.

2 Ibid., vol. 1125, pp. 3 and 609.

Article 13

This Convention shall not apply where the offence is committed within a single State, the hostage and the alleged offender are nationals of that State and the alleged offender is found in the territory of that State.

Article 14

Nothing in this Convention shall be construed as justifying the violation of the territorial integrity or political independence of a State in contravention of the Charter of the United Nations.

Article 15

The provisions of this Convention shall not affect the application of the Treaties on Asylum, in force at the date of the adoption of this Convention, as between the States which are parties to those Treaties; but a State Party to this Convention may not invoke those Treaties with respect to another State Party to this Convention which is not a party to those treaties.

Article 16

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2. Each State may at the time of signature or ratification of this Convention or accession thereto declare that it does not consider itself bound by paragraph 1 of this article. The other States Parties shall not be bound by paragraph 1 of this article with respect to any State Party which has made such a reservation.

3. Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.

Article 17

1. This Convention is open for signature by all States until 31 December 1980 at United Nations Headquarters in New York.

2. This Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. This Convention is open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 18

1. This Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.

2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.

Article 19

1. Any State Party may denounce this Convention by written notification to the Secretary-General of the United Nations.

2. Denunciation shall take effect one year following the date on which notification is received by the Secretary-General of the United Nations.

Article 20

The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention, opened for signature at New York on 18 December 1979.

ISB Act 2005-03-08

Schedule 4 Criminal Justice (Terrorist Offences) Act 2005 Open official source

SCHEDULE 4 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents

SCHEDULE 4

Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents

Section 11.

The States Parties to this Convention,

Having in mind the purposes and principles of the Charter of the United Nations concerning the maintenance of international peace and the promotion of friendly relations and co-operation among States,

Considering that crimes against diplomatic agents and other internationally protected persons jeopardizing the safety of these persons create a serious threat to the maintenance of normal international relations which are necessary for co-operation among States,

Believing that the commission of such crimes is a matter of grave concern to the international community,

Convinced that there is an urgent need to adopt appropriate and effective measures for the prevention and punishment of such crimes,

Have agreed as follows

Article 1

For the purposes of this Convention

1. “Internationally protected person” means

(a) a Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister for Foreign Affairs, whenever any such person is in a foreign State, as well as members of his family who accompany him;

(b) any representative or official of a State or any official or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household;

2. “Alleged offender” means a person as to whom there is sufficient evidence to determine prima facie that he has committed or participated in one or more of the crimes set forth in article 2.

Article 2

1. The intentional commission of

(a) a murder, kidnapping or other attack upon the person or liberty of an internationally protected person;

(b) a violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty;

(c) a threat to commit any such attack;

(d) an attempt to commit any such attack; and

(e) an act constituting participation as an accomplice in any such attack;

shall be made by each State Party a crime under its internal law.

2. Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.

3. Paragraphs 1 and 2 of this article in no way derogate from the obligations of States Parties under international law to take all appropriate measures to prevent other attacks on the person, freedom or dignity of an internationally protected person.

Article 3

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set forth in article 2 in the following cases

(a) when the crime is committed in the territory of that State or on board a ship or aircraft registered in that State;

(b) when the alleged offender is a national of that State;

(c) when the crime is committed against an internationally protected person as defined in article 1 who enjoys his status as such by virtue of functions which he exercises on behalf of that State.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over these crimes in cases where the alleged offender is present in its territory and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Article 4

States Parties shall co-operate in the prevention of the crimes set forth in article 2, particularly by

(a) taking all practicable measures to prevent preparations in their respective territories for the commission of those crimes within or outside their territories;

(b) exchanging information and co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those crimes.

Article 5

1. The State Party in which any of the crimes set forth in article 2 has been committed shall, if it has reason to believe that an alleged offender has fled from its territory, communicate to all other States concerned, directly or through the Secretary-General of the United Nations, all the pertinent facts regarding the crime committed and all available information regarding the identity of the alleged offender.

2. Whenever any of the crimes set forth in article 2 has been committed against an internationally protected person, any State Party which has information concerning the victim and the circumstances of the crime shall endeavour to transmit it, under the conditions provided for in its internal law, fully and promptly to the State Party on whose behalf he was exercising his functions.

Article 6

1. Upon being satisfied that the circumstances so warrant, the State Party in whose territory the alleged offender is present shall take the appropriate measures under its internal law so as to ensure his presence for the purpose of prosecution or extradition. Such measures shall be notified without delay directly or through the Secretary-General of the United Nations to

(a) the State where the crime was committed;

(b) the State or States of which the alleged offender is a national or, if he is a stateless person, in whose territory he permanently resides;

(c) the State or States of which the internationally protected person concerned is a national or on whose behalf he was exercising his functions;

(d) all other States concerned; and

(e) the international organization of which the internationally protected person concerned is an official or an agent.

2. Any person regarding whom the measures referred to in paragraph 1 of this article are being taken shall be entitled

(a) to communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to protect his rights or, if he is a stateless person, which he requests and which is willing to protect his rights; and

(b) to be visited by a representative of that State.

Article 7

The State Party in whose territory the alleged offender is present shall, if it does not extradite him, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.

Article 8

1. To the extent that the crimes set forth in article 2 are not listed as extraditable offences in any extradition treaty existing between States Parties, they shall be deemed to be included as such therein. States Parties undertake to include those crimes as extraditable offences in every future extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may, if it decides to extradite, consider this Convention as the legal basis for extradition in respect of those crimes. Extradition shall be subject to the procedural provisions and the other conditions of the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize those crimes as extraditable offences between themselves subject to the procedural provisions and the other conditions of the law of the requested State.

4. Each of the crimes shall be treated, for the purpose of extradition between States Parties, as if it had been committed not only in the place in which it occurred but also in the territories of the States required to establish their jurisdiction in accordance with paragraph 1 of article 3.

Article 9

Any person regarding whom proceedings are being carried out in connexion with any of the crimes set forth in article 2 shall be guaranteed fair treatment at all stages of the proceedings.

Article 10

1. States Parties shall afford one another the greatest measure of assistance in connexion with criminal proceedings brought in respect of the crimes set forth in article 2, including the supply of all evidence at their disposal necessary for the proceedings.

2. The provisions of paragraph 1 of this article shall not affect obligations concerning mutual judicial assistance embodied in any other treaty.

Article 11

The State Party where an alleged offender is prosecuted shall communicate the final outcome of the proceedings to the Secretary-General of the United Nations, who shall transmit the information to the other States Parties.

Article 12

The provisions of this Convention shall not affect the application of the Treaties on Asylum, in force at the date of the adoption of this Convention, as between the States which are parties to those Treaties; but a State Party to this Convention may not invoke those Treaties with respect to another State Party to this Convention which is not a party to those Treaties.

Article 13

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2. Each State Party may at the time of signature or ratification of this Convention or accession thereto declare that it does not consider itself bound by paragraph 1 of this article. The other States Parties shall not be bound by paragraph 1 of this article with respect to any State Party which has made such a reservation.

3. Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.

Article 14

This Convention shall be opened for signature by all States, until 31 December 1974 at United Nations Headquarters in New York.

Article 15

This Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 16

This Convention shall remain open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 17

1. This Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.

2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.

Article 18

1. Any State Party may denounce this Convention by written notification to the Secretary-General of the United Nations.

2. Denunciation shall take effect six months following the date on which notification is received by the Secretary-General of the United Nations.

Article 19

The Secretary-General of the United Nations shall inform all States, inter alia

(a) of signatures to this Convention, of the deposit of instruments of ratification or accession in accordance with articles 14, 15 and 16 and of notifications made under article 18;

(b) of the date on which this Convention will enter into force in accordance with article 17.

Article 20

The original of this Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States.

In witness whereof the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention, opened for signature at New York on 14 December 1973.

ISB Act 2005-03-08

Schedule 5 Criminal Justice (Terrorist Offences) Act 2005 Open official source

SCHEDULE 5 International Convention for the Suppression of Terrorist Bombings

SCHEDULE 5

International Convention for the Suppression of Terrorist Bombings

Section 10.

The States Parties to this Convention,

Having in mind the purposes and principles of the Charter of the United Nations concerning the maintenance of international peace and security and the promotion of good-neighbourliness and friendly relations and cooperation among States,

Deeply concerned about the worldwide escalation of acts of terrorism in all its forms and manifestations,

Recalling the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations of 24 October 1995,

Recalling also the Declaration on Measures to Eliminate International Terrorism, annexed to General Assembly resolution 49/60 of 9 December 1994, in which, inter alia, “the States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed, including those which jeopardize the friendly relations among States and peoples and threaten the territorial integrity and security of States”,

Noting that the Declaration also encouraged States “to review urgently the scope of the existing international legal provisions on the prevention, repression and elimination of terrorism in all its forms and manifestations, with the aim of ensuring that there is a comprehensive legal framework covering all aspects of the matter”,

Recalling further General Assembly resolution 51/210 of 17 December 1996 and the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, annexed thereto,

Noting also that terrorist attacks by means of explosives or other lethal devices have become increasingly widespread,

Noting further that existing multilateral legal provisions do not adequately address these attacks,

Being convinced of the urgent need to enhance international cooperation between States in devising and adopting effective and practical measures for the prevention of such acts of terrorism and for the prosecution and punishment of their perpetrators,

Considering that the occurrence of such acts is a matter of grave concern to the international community as a whole,

Noting that the activities of military forces of States are governed by rules of international law outside the framework of this Convention and that the exclusion of certain actions from the coverage of this Convention does not condone or make lawful otherwise unlawful acts, or preclude prosecution under other laws,

Have agreed as follows

Article 1

For the purposes of this Convention

1. “State or government facility” includes any permanent or temporary facility or conveyance that is used or occupied by representatives of a State, members of Government, the legislature or the judiciary or by officials or employees of a State or any other public authority or entity or by employees or officials of an intergovernmental organization in connection with their official duties.

2. “Infrastructure facility” means any publicly or privately owned facility providing or distributing services for the benefit of the public, such as water, sewage, energy, fuel or communications.

3. “Explosive or other lethal device” means

(a) An explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage; or

(b) A weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material.

4. “Military forces of a State” means the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.

5. “Place of public use” means those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally, and encompasses any commercial, business, cultural, historical, educational, religious, governmental, entertainment, recreational or similar place that is so accessible or open to the public.

6. “Public transportation system” means all facilities, conveyances and instrumentalities, whether publicly or privately owned, that are used in or for publicly available services for the transportation of persons or cargo.

Article 2

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

2. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1.

3. Any person also commits an offence if that person

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2; or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

Article 3

This Convention shall not apply where the offence is committed within a single State, the alleged offender and the victims are nationals of that State, the alleged offender is found in the territory of that State and no other State has a basis under article 6, paragraph 1 or article 6, paragraph 2, of this Convention to exercise jurisdiction, except that the provisions of articles 10 to 15 shall, as appropriate, apply in those cases.

Article 4

Each State Party shall adopt such measures as may be necessary

(a) To establish as criminal offences under its domestic law the offences set forth in article 2 of this Convention;

(b) To make those offences punishable by appropriate penalties which take into account the grave nature of those offences.

Article 5

Each State Party shall adopt such measures as may be necessary, including, where appropriate, domestic legislation, to ensure that criminal acts within the scope of this Convention, in particular where they are intended or calculated to provoke a state of terror in the general public or in a group of persons or particular persons, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature and are punished by penalties consistent with their grave nature.

Article 6

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 when

(a) The offence is committed in the territory of that State; or

(b) The offence is committed on board a vessel flying the flag of that State or an aircraft which is registered under the laws of that State at the time the offence is committed; or

(c) The offence is committed by a national of that State.

2. A State Party may also establish its jurisdiction over any such offence when

(a) The offence is committed against a national of that State; or

(b) The offence is committed against a State or government facility of that State abroad, including an embassy or other diplomatic or consular premises of that State; or

(c) The offence is committed by a stateless person who has his or her habitual residence in the territory of that State; or

(d) The offence is committed in an attempt to compel that State to do or abstain from doing any act; or

(e) The offence is committed on board an aircraft which is operated by the Government of that State.

3. Upon ratifying, accepting, approving or acceding to this Convention, each State Party shall notify the Secretary-General of the United Nations of the jurisdiction it has established in accordance with paragraph 2 under its domestic law. Should any change take place, the State Party concerned shall immediately notify the Secretary-General.

4. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2.

5. This Convention does not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law.

Article 7

1. Upon receiving information that a person who has committed or who is alleged to have committed an offence as set forth in article 2 may be present in its territory, the State Party concerned shall take such measures as may be necessary under its domestic law to investigate the facts contained in the information.

2. Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its domestic law so as to ensure that person's presence for the purpose of prosecution or extradition.

3. Any person regarding whom the measures referred to in paragraph 2 are being taken shall be entitled to

(a) Communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled to protect that person's rights or, if that person is a stateless person, the State in the territory of which that person habitually resides;

(b) Be visited by a representative of that State;

(c) Be informed of that person's rights under subparagraphs (a) and (b).

4. The rights referred to in paragraph 3 shall be exercised in conformity with the laws and regulations of the State in the territory of which the offender or alleged offender is present, subject to the provision that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended.

5. The provisions of paragraphs 3 and 4 shall be without prejudice to the right of any State Party having a claim to jurisdiction in accordance with article 6, subparagraph 1(c) or 2(c), to invite the International Committee of the Red Cross to communicate with and visit the alleged offender.

6. When a State Party, pursuant to this article, has taken a person into custody, it shall immediately notify, directly or through the Secretary-General of the United Nations, the States Parties which have established jurisdiction in accordance with article 6, paragraphs 1 and 2, and, if it considers it advisable, any other interested States Parties, of the fact that such person is in custody and of the circumstances which warrant that person's detention. The State which makes the investigation contemplated in paragraph 1 shall promptly inform the said States Parties of its findings and shall indicate whether it intends to exercise jurisdiction.

Article 8

1. The State Party in the territory of which the alleged offender is present shall, in cases to which article 6 applies, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

2. Whenever a State Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that State to serve the sentence imposed as a result of the trial or proceeding for which the extradition or surrender of the person was sought, and this State and the State seeking the extradition of the person agree with this option and other terms they may deem appropriate, such a conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 1.

Article 9

1. The offences set forth in article 2 shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the States Parties before the entry into force of this Convention. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be subsequently concluded between them.

2. When a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, the requested State Party may, at its option, consider this Convention as a legal basis for extradition in respect of the offences set forth in article 2. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences set forth in article 2 as extraditable offences between themselves, subject to the conditions provided by the law of the requested State.

4. If necessary, the offences set forth in article 2 shall be treated, for the purposes of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territory of the States that have established jurisdiction in accordance with article 6, paragraphs 1 and 2.

5. The provisions of all extradition treaties and arrangements between States Parties with regard to offences set forth in article 2 shall be deemed to be modified as between State Parties to the extent that they are incompatible with this Convention.

Article 10

1. States Parties shall afford one another the greatest measure of assistance in connection with investigations or criminal or extradition proceedings brought in respect of the offences set forth in article 2, including assistance in obtaining evidence at their disposal necessary for the proceedings.

2. States Parties shall carry out their obligations under paragraph 1 in conformity with any treaties or other arrangements on mutual legal assistance that may exist between them. In the absence of such treaties or arrangements, States Parties shall afford one another assistance in accordance with their domestic law.

Article 11

None of the offences set forth in article 2 shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.

Article 12

Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in article 2 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person's race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person's position for any of these reasons.

Article 13

1. A person who is being detained or is serving a sentence in the territory of one State Party whose presence in another State Party is requested for purposes of testimony, identification or otherwise providing assistance in obtaining evidence for the investigation or prosecution of offences under this Convention may be transferred if the following conditions are met

(a) The person freely gives his or her informed consent; and

(b) The competent authorities of both States agree, subject to such conditions as those States may deem appropriate.

2. For the purposes of this article

(a) The State to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the State from which the person was transferred;

(b) The State to which the person is transferred shall without delay implement its obligation to return the person to the custody of the State from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both States;

(c) The State to which the person is transferred shall not require the State from which the person was transferred to initiate extradition proceedings for the return of the person;

(d) The person transferred shall receive credit for service of the sentence being served in the State from which he was transferred for time spent in the custody of the State to which he was transferred.

3. Unless the State Party from which a person is to be transferred in accordance with this article so agrees, that person, whatever his or her nationality, shall not be prosecuted or detained or subjected to any other restriction of his or her personal liberty in the territory of the State to which that person is transferred in respect of acts or convictions anterior to his or her departure from the territory of the State from which such person was transferred.

Article 14

Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international law of human rights.

Article 15

States Parties shall cooperate in the prevention of the offences set forth in article 2, particularly

(a) By taking all practicable measures, including, if necessary, adapting their domestic legislation, to prevent and counter preparations in their respective territories for the commission of those offences within or outside their territories, including measures to prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize, knowingly finance or engage in the perpetration of offences as set forth in article 2;

(b) By exchanging accurate and verified information in accordance with their national law, and coordinating administrative and other measures taken as appropriate to prevent the commission of offences as set forth in article 2;

(c) Where appropriate, through research and development regarding methods of detection of explosives and other harmful substances that can cause death or bodily injury, consultations on the development of standards for marking explosives in order to identify their origin in post-blast investigations, exchange of information on preventive measures, cooperation and transfer of technology, equipment and related materials.

Article 16

The State Party where the alleged offender is prosecuted shall, in accordance with its domestic law or applicable procedures, communicate the final outcome of the proceedings to the Secretary-General of the United Nations, who shall transmit the information to the other States Parties.

Article 17

The States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.

Article 18

Nothing in this Convention entitles a State Party to undertake in the territory of another State Party the exercise of jurisdiction and performance of functions which are exclusively reserved for the authorities of that other State Party by its domestic law.

Article 19

1. Nothing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes and principles of the Charter of the United Nations and international humanitarian law.

2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

Article 20

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

2. Each State may at the time of signature, ratification, acceptance or approval of this Convention or accession thereto declare that it does not consider itself bound by paragraph 1. The other States Parties shall not be bound by paragraph 1 with respect to any State Party which has made such a reservation.

3. Any State which has made a reservation in accordance with paragraph 2 may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.

Article 21

1. This Convention shall be open for signature by all States from 12 January 1998 until 31 December 1999 at United Nations Headquarters in New York.

2. This Convention is subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.

3. This Convention shall be open to accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 22

1. This Convention shall enter into force on the thirtieth day following the date of the deposit of the twenty-second instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.

2. For each State ratifying, accepting, approving or acceding to the Convention after the deposit of the twenty-second instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification, acceptance, approval or accession.

Article 23

1. Any State Party may denounce this Convention by written notification to the Secretary-General of the United Nations.

2. Denunciation shall take effect one year following the date on which notification is received by the Secretary-General of the United Nations.

Article 24

The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention, opened for signature at New York on 12 January 1998.

ISB Act 2005-03-08

Schedule 6 Criminal Justice (Terrorist Offences) Act 2005 Open official source

SCHEDULE 6 Offences Against internationally protected persons

Offences Against internationally protected persons

Section 11.

PART 1

(specified offences referred to in section 11(1)(a))

Common law offences.

1. The following common law offences

(a) murder;

(b) manslaughter;

(c) rape.

Non-fatal offences against the person.

2. An offence under any of the following provisions of the Non-Fatal Offences against the Person Act 1997

(a) section 2 (assault);

(b) section 3 (assault causing harm);

(c) section 4 (assault causing serious harm);

(d) section 6 (syringe and other attack);

(e) section 12 (poisoning);

(f) section 13 (endangerment);

(g) section 15 (false imprisonment).

Sexual offences.

3. An offence under any of the following provisions of the Criminal Law (Rape) (Amendment) Act 1990

(a) section 2 (sexual assault);

(b) section 3 (aggravated sexual assault);

(c) section 4 (rape under section 4).

Offences relating to explosives.

4. An offence under section 2 (causing explosion likely to endanger life or damage property) of the Explosive Substances Act 1883.

PART 2

(specified offences referred to in section 11(1)(b))

Offences relating to explosives.

5. An offence under section 2 (causing explosion likely to endanger life or damage property) of the Explosive Substances Act 1883.

Criminal damage and other offences.

6. An offence under any of the following provisions

(a) section 2 of the Criminal Damage Act 1991 (damaging property);

(b) section 10 of the Criminal Law (Jurisdiction) Act 1976 (unlawful seizure of vehicles, etc.);

(c) section 63(1)(a) of the Post Office Act 1908 (prohibition of sending dangerous substances by post).

ISB Act 2005-03-08

Schedule 7 Criminal Justice (Terrorist Offences) Act 2005 Open official source

SCHEDULE 7 International Convention for the Suppression of the Financing of Terrorism

SCHEDULE 7

International Convention for the Suppression of the Financing of Terrorism

Part 4.

Preamble

The States Parties to this Convention,

Bearing in mind the purposes and principles of the Charter of the United Nations concerning the maintenance of international peace and security and the promotion of good-neighbourliness and friendly relations and cooperation among States,

Deeply concerned about the worldwide escalation of acts of terrorism in all its forms and manifestations,

Recalling the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, contained in General Assembly resolution 50/6 of 24 October 1995,

Recalling also all the relevant General Assembly resolutions on the matter, including resolution 49/60 of 9 December 1994 and its annex thereto on the Declaration on Measures to Eliminate International Terrorism, in which the States Members of the United Nations solemnly reaffirmed their unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed, including those which jeopardize the friendly relations among States and peoples and threaten the territorial integrity and security of States,

Noting that the Declaration on Measures to Eliminate International Terrorism also encouraged States to review urgently the scope of the existing international legal provisions on the prevention, repression and elimination of terrorism in all its forms and manifestations, with the aim of ensuring that there is a comprehensive legal framework covering all aspects of the matter,

Recalling General Assembly resolution 51/210 of 17 December 1996, paragraph 3, subparagraph (f), in which the Assembly called upon all States to take steps to prevent and counteract, through appropriate domestic measures, the financing of terrorists and terrorist organizations, whether such financing is direct or indirect through organizations which also have or claim to have charitable, social or cultural goals or which are also engaged in unlawful activities such as illicit arms trafficking, drug dealing and racketeering, including the exploitation of persons for purposes of funding terrorist activities, and in particular to consider, where appropriate, adopting regulatory measures to prevent and counteract movements of funds suspected to be intended for terrorist purposes without impeding in any way the freedom of legitimate capital movements and to intensify the exchange of information concerning international movements of such funds,

Recalling also General Assembly resolution 52/165 of 15 December 1997, in which the Assembly called upon States to consider, in particular, the implementation of the measures set out in paragraphs 3(a) to (f) of its resolution 51/210 of 17 December 1996,

Recalling further General Assembly resolution 53/108 of 8 December 1998, in which the Assembly decided that the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996 should elaborate a draft international convention for the suppression of terrorist financing to supplement related existing international instruments,

Considering that the financing of terrorism is a matter of grave concern to the international community as a whole,

Noting that the number and seriousness of acts of international terrorism depend on the financing that terrorists may obtain,

Noting also that existing multilateral legal instruments do not expressly address such financing,

Being convinced of the urgent need to enhance international cooperation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators,

Have agreed as follows

Article 1

For the purposes of this Convention

1. “Funds” means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, and letters of credit.

2. “State or government facility” means any permanent or temporary facility or conveyance that is used or occupied by representatives of a State, members of Government, the legislature or the judiciary or by officials or employees of a State or any other public authority or entity or by employees or officials of an intergovernmental organization in connection with their official duties.

3. “Proceeds” means any funds derived from or obtained, directly or indirectly, through the commission of an offence set forth in article 2.

Article 2

1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out

(a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or

(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

2. (a) On depositing its instrument of ratification, acceptance, approval or accession, a State Party which is not a party to a treaty listed in the annex may declare that, in the application of this Convention to the State Party, the treaty shall be deemed not to be included in the annex referred to in paragraph 1, subparagraph (a). The declaration shall cease to have effect as soon as the treaty enters into force for the State Party, which shall notify the depositary of this fact;

(b) When a State Party ceases to be a party to a treaty listed in the annex, it may make a declaration as provided for in this article, with respect to that treaty.

3. For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that the funds were actually used to carry out an offence referred to in paragraph 1, subparagraph (a) or (b).

4. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of this article.

5. Any person also commits an offence if that person

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this article;

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 4 of this article;

(c) Contributes to the commission of one or more offences as set forth in paragraphs 1 or 4 of this article by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in paragraph 1 of this article; or

(ii) Be made in the knowledge of the intention of the group to commit an offence as set forth in paragraph 1 of this article.

Article 3

This Convention shall not apply where the offence is committed within a single State, the alleged offender is a national of that State and is present in the territory of that State and no other State has a basis under article 7, paragraph 1, or article 7, paragraph 2, to exercise jurisdiction, except that the provisions of articles 12 to 18 shall, as appropriate, apply in those cases.

Article 4

Each State Party shall adopt such measures as may be necessary

(a) To establish as criminal offences under its domestic law the offences set forth in article 2;

(b) To make those offences punishable by appropriate penalties which take into account the grave nature of the offences.

Article 5

1. Each State Party, in accordance with its domestic legal principles, shall take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity, committed an offence set forth in article 2. Such liability may be criminal, civil or administrative.

2. Such liability is incurred without prejudice to the criminal liability of individuals who have committed the offences.

3. Each State Party shall ensure, in particular, that legal entities liable in accordance with paragraph 1 above are subject to effective, proportionate and dissuasive criminal, civil or administrative sanctions. Such sanctions may include monetary sanctions.

Article 6

Each State Party shall adopt such measures as may be necessary, including, where appropriate, domestic legislation, to ensure that criminal acts within the scope of this Convention are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.

Article 7

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 when

(a) The offence is committed in the territory of that State;

(b) The offence is committed on board a vessel flying the flag of that State or an aircraft registered under the laws of that State at the time the offence is committed;

(c) The offence is committed by a national of that State.

2. A State Party may also establish its jurisdiction over any such offence when

(a) The offence was directed towards or resulted in the carrying out of an offence referred to in article 2, paragraph 1, subparagraph (a) or (b), in the territory of or against a national of that State;

(b) The offence was directed towards or resulted in the carrying out of an offence referred to in article 2, paragraph 1, subparagraph (a) or (b), against a State or government facility of that State abroad, including diplomatic or consular premises of that State;

(c) The offence was directed towards or resulted in an offence referred to in article 2, paragraph 1, subparagraph (a) or (b), committed in an attempt to compel that State to do or abstain from doing any act;

(d) The offence is committed by a stateless person who has his or her habitual residence in the territory of that State;

(e) The offence is committed on board an aircraft which is operated by the Government of that State.

3. Upon ratifying, accepting, approving or acceding to this Convention, each State Party shall notify the Secretary-General of the United Nations of the jurisdiction it has established in accordance with paragraph 2. Should any change take place, the State Party concerned shall immediately notify the Secretary-General.

4. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States Parties that have established their jurisdiction in accordance with paragraphs 1 or 2.

5. When more than one State Party claims jurisdiction over the offences set forth in article 2, the relevant States Parties shall strive to coordinate their actions appropriately, in particular concerning the conditions for prosecution and the modalities for mutual legal assistance.

6. Without prejudice to the norms of general international law, this Convention does not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law.

Article 8

1. Each State Party shall take appropriate measures, in accordance with its domestic legal principles, for the identification, detection and freezing or seizure of any funds used or allocated for the purpose of committing the offences set forth in article 2 as well as the proceeds derived from such offences, for purposes of possible forfeiture.

2. Each State Party shall take appropriate measures, in accordance with its domestic legal principles, for the forfeiture of funds used or allocated for the purpose of committing the offences set forth in article 2 and the proceeds derived from such offences.

3. Each State Party concerned may give consideration to concluding agreements on the sharing with other States Parties, on a regular or case-by-case basis, of the funds derived from the forfeitures referred to in this article.

4. Each State Party shall consider establishing mechanisms whereby the funds derived from the forfeitures referred to in this article are utilized to compensate the victims of offences referred to in article 2, paragraph 1, subparagraph (a) or (b), or their families.

5. The provisions of this article shall be implemented without prejudice to the rights of third parties acting in good faith.

Article 9

1. Upon receiving information that a person who has committed or who is alleged to have committed an offence set forth in article 2 may be present in its territory, the State Party concerned shall take such measures as may be necessary under its domestic law to investigate the facts contained in the information.

2. Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its domestic law so as to ensure that person's presence for the purpose of prosecution or extradition.

3. Any person regarding whom the measures referred to in paragraph 2 are being taken shall be entitled to

(a) Communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled to protect that person's rights or, if that person is a stateless person, the State in the territory of which that person habitually resides;

(b) Be visited by a representative of that State;

(c) Be informed of that person's rights under subparagraphs (a) and (b).

4. The rights referred to in paragraph 3 shall be exercised in conformity with the laws and regulations of the State in the territory of which the offender or alleged offender is present, subject to the provision that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended.

5. The provisions of paragraphs 3 and 4 shall be without prejudice to the right of any State Party having a claim to jurisdiction in accordance with article 7, paragraph 1, subparagraph (b), or paragraph 2, subparagraph (b), to invite the International Committee of the Red Cross to communicate with and visit the alleged offender.

6. When a State Party, pursuant to the present article, has taken a person into custody, it shall immediately notify, directly or through the Secretary-General of the United Nations, the States Parties which have established jurisdiction in accordance with article 7, paragraph 1 or 2, and, if it considers it advisable, any other interested States Parties, of the fact that such person is in custody and of the circumstances which warrant that person's detention. The State which makes the investigation contemplated in paragraph 1 shall promptly inform the said States Parties of its findings and shall indicate whether it intends to exercise jurisdiction.

Article 10

1. The State Party in the territory of which the alleged offender is present shall, in cases to which article 7 applies, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

2. Whenever a State Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that State to serve the sentence imposed as a result of the trial or proceeding for which the extradition or surrender of the person was sought, and this State and the State seeking the extradition of the person agree with this option and other terms they may deem appropriate, such a conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 1.

Article 11

1. The offences set forth in article 2 shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the States Parties before the entry into force of this Convention. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be subsequently concluded between them.

2. When a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, the requested State Party may, at its option, consider this Convention as a legal basis for extradition in respect of the offences set forth in article 2. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences set forth in article 2 as extraditable offences between themselves, subject to the conditions provided by the law of the requested State.

4. If necessary, the offences set forth in article 2 shall be treated, for the purposes of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territory of the States that have established jurisdiction in accordance with article 7, paragraphs 1 and 2.

5. The provisions of all extradition treaties and arrangements between States Parties with regard to offences set forth in article 2 shall be deemed to be modified as between States Parties to the extent that they are incompatible with this Convention.

Article 12

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings in respect of the offences set forth in article 2, including assistance in obtaining evidence in their possession necessary for the proceedings.

2. States Parties may not refuse a request for mutual legal assistance on the ground of bank secrecy.

3. The requesting Party shall not transmit or use information or evidence furnished by the requested Party for investigations, prosecutions or proceedings other than those stated in the request without the prior consent of the requested Party.

4. Each State Party may give consideration to establishing mechanisms to share with other States Parties information or evidence needed to establish criminal, civil or administrative liability pursuant to article 5.

5. States Parties shall carry out their obligations under paragraphs 1 and 2 in conformity with any treaties or other arrangements on mutual legal assistance or information exchange that may exist between them. In the absence of such treaties or arrangements, States Parties shall afford one another assistance in accordance with their domestic law.

Article 13

None of the offences set forth in article 2 shall be regarded, for the purposes of extradition or mutual legal assistance, as a fiscal offence. Accordingly, States Parties may not refuse a request for extradition or for mutual legal assistance on the sole ground that it concerns a fiscal offence.

Article 14

None of the offences set forth in article 2 shall be regarded for the purposes of extradition or mutual legal assistance as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.

Article 15

Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in article 2 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person's race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person's position for any of these reasons.

Article 16

1. A person who is being detained or is serving a sentence in the territory of one State Party whose presence in another State Party is requested for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for the investigation or prosecution of offences set forth in article 2 may be transferred if the following conditions are met

(a) The person freely gives his or her informed consent;

(b) The competent authorities of both States agree, subject to such conditions as those States may deem appropriate.

2. For the purposes of the present article

(a) The State to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the State from which the person was transferred;

(b) The State to which the person is transferred shall without delay implement its obligation to return the person to the custody of the State from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both States;

(c) The State to which the person is transferred shall not require the State from which the person was transferred to initiate extradition proceedings for the return of the person;

(d) The person transferred shall receive credit for service of the sentence being served in the State from which he or she was transferred for time spent in the custody of the State to which he or she was transferred.

3. Unless the State Party from which a person is to be transferred in accordance with the present article so agrees, that person, whatever his or her nationality, shall not be prosecuted or detained or subjected to any other restriction of his or her personal liberty in the territory of the State to which that person is transferred in respect of acts or convictions anterior to his or her departure from the territory of the State from which such person was transferred.

Article 17

Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international human rights law.

Article 18

1. States Parties shall cooperate in the prevention of the offences set forth in article 2 by taking all practicable measures, inter alia, by adapting their domestic legislation, if necessary, to prevent and counter preparations in their respective territories for the commission of those offences within or outside their territories, including

(a) Measures to prohibit in their territories illegal activities of persons and organizations that knowingly encourage, instigate, organize or engage in the commission of offences set forth in article 2;

(b) Measures requiring financial institutions and other professions involved in financial transactions to utilize the most efficient measures available for the identification of their usual or occasional customers, as well as customers in whose interest accounts are opened, and to pay special attention to unusual or suspicious transactions and report transactions suspected of stemming from a criminal activity. For this purpose, States Parties shall consider

(i) Adopting regulations prohibiting the opening of accounts the holders or beneficiaries of which are unidentified or unidentifiable, and measures to ensure that such institutions verify the identity of the real owners of such transactions;

(ii) With respect to the identification of legal entities, requiring financial institutions, when necessary, to take measures to verify the legal existence and the structure of the customer by obtaining, either from a public register or from the customer or both, proof of incorporation, including information concerning the customer's name, legal form, address, directors and provisions regulating the power to bind the entity;

(iii) Adopting regulations imposing on financial institutions the obligation to report promptly to the competent authorities all complex, unusual large transactions and unusual patterns of transactions, which have no apparent economic or obviously lawful purpose, without fear of assuming criminal or civil liability for breach of any restriction on disclosure of information if they report their suspicions in good faith;

(iv) Requiring financial institutions to maintain, for at least five years, all necessary records on transactions, both domestic or international.

2. States Parties shall further cooperate in the prevention of offences set forth in article 2 by considering

(a) Measures for the supervision, including, for example, the licensing, of all money-transmission agencies;

(b) Feasible measures to detect or monitor the physical cross-border transportation of cash and bearer negotiable instruments, subject to strict safeguards to ensure proper use of information and without impeding in any way the freedom of capital movements.

3. States Parties shall further cooperate in the prevention of the offences set forth in article 2 by exchanging accurate and verified information in accordance with their domestic law and coordinating administrative and other measures taken, as appropriate, to prevent the commission of offences set forth in article 2, in particular by

(a) Establishing and maintaining channels of communication between their competent agencies and services to facilitate the secure and rapid exchange of information concerning all aspects of offences set forth in article 2;

(b) Cooperating with one another in conducting inquiries, with respect to the offences set forth in article 2, concerning

(i) The identity, whereabouts and activities of persons in respect of whom reasonable suspicion exists that they are involved in such offences;

(ii) The movement of funds relating to the commission of such offences.

4. States Parties may exchange information through the International Criminal Police Organization (Interpol).

Article 19

The State Party where the alleged offender is prosecuted shall, in accordance with its domestic law or applicable procedures, communicate the final outcome of the proceedings to the Secretary-General of the United Nations, who shall transmit the information to the other States Parties.

Article 20

The States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.

Article 21

Nothing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes of the Charter of the United Nations, international humanitarian law and other relevant conventions.

Article 22

Nothing in this Convention entitles a State Party to undertake in the territory of another State Party the exercise of jurisdiction or performance of functions which are exclusively reserved for the authorities of that other State Party by its domestic law.

Article 23

1. The annex may be amended by the addition of relevant treaties that

(a) Are open to the participation of all States;

(b) Have entered into force;

(c) Have been ratified, accepted, approved or acceded to by at least twenty-two States Parties to the present Convention.

2. After the entry into force of this Convention, any State Party may propose such an amendment. Any proposal for an amendment shall be communicated to the depositary in written form. The depositary shall notify proposals that meet the requirements of paragraph 1 to all States Parties and seek their views on whether the proposed amendment should be adopted.

3. The proposed amendment shall be deemed adopted unless one third of the States Parties object to it by a written notification not later than 180 days after its circulation.

4. The adopted amendment to the annex shall enter into force 30 days after the deposit of the twenty-second instrument of ratification, acceptance or approval of such amendment for all those States Parties that have deposited such an instrument. For each State Party ratifying, accepting or approving the amendment after the deposit of the twenty-second instrument, the amendment shall enter into force on the thirtieth day after deposit by such State Party of its instrument of ratification, acceptance or approval.

Article 24

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

2. Each State may at the time of signature, ratification, acceptance or approval of this Convention or accession thereto declare that it does not consider itself bound by paragraph 1. The other States Parties shall not be bound by paragraph 1 with respect to any State Party which has made such a reservation.

3. Any State which has made a reservation in accordance with paragraph 2 may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.

Article 25

1. This Convention shall be open for signature by all States from 10 January 2000 to 31 December 2001 at United Nations Headquarters in New York.

2. This Convention is subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.

3. This Convention shall be open to accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 26

1. This Convention shall enter into force on the thirtieth day following the date of the deposit of the twenty-second instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.

2. For each State ratifying, accepting, approving or acceding to the Convention after the deposit of the twenty-second instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification, acceptance, approval or accession.

Article 27

1. Any State Party may denounce this Convention by written notification to the Secretary-General of the United Nations.

2. Denunciation shall take effect one year following the date on which notification is received by the Secretary-General of the United Nations.

Article 28

The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations who shall send certified copies thereof to all States.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention, opened for signature at United Nations Headquarters in New York on 10 January 2000.

ANNEX

1. Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970.

2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971.

3. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973.

4. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979.

5. Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 3 March 1980.

6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988.

7. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988.

8. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, done at Rome on 10 March 1988.

9. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.

ACHT UM CHEARTAS COIRIÚIL (CIONTA SCEIMHLITHEOIREACHTA) 2005

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005

EXPLANATORY MEMORANDUM

Introduction

The purpose of the Act is to give effect to a number of international instruments directed to terrorism and to meet commitments which the State has undertaken as part of the European Union and the broader international community, including commitments arising from United Nations Security Council Resolution 1373 adopted in response to the events of September 11th, 2001. The Act is also intended to amend our law more generally to enhance the capacity of the State to address the problem of international terrorism.

The principal purpose of the Act is to enable effect to be given in our law to the

European Union Framework Decision on Combating Terrorism;

International Convention against the Taking of Hostages;

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents;

International Convention for the Suppression of Terrorist Bombings; and the

International Convention for the Suppression of the Financing of Terrorism.

The Act makes provision for a number of additional measures directed in particular to the financing of terrorism and terrorist groups for the purpose of complementing the Convention for the Suppression of the Financing of Terrorism.

This Act also provides for the retention of communications data (Part 7) and amends the European Arrest Warrant Act 2003 (Part 8).

PART 1 (Sections 1 - 3)

Preliminary Matters

This Part defines certain terms used in the Act and provides for the bringing into force of the Act.

Section 1 (Short title)

Section 1 provides that the short title of the Act is the Criminal Justice (Terrorist Offences) Act 2005.

Section 2 (Commencement)

Section 2 provides that the Act will come into operation on enactment except for section 32, which will come into operation 4 months after the passing of the Act.

Section 3 (Interpretation)

Section 3 provides for the definition of certain terms used in the Act and for the circumstances in which a person will be considered to be resident or habitually resident in the State.

PART 2 (Sections 4 - 7)

Suppression of Terrorist Groups and Terrorist Offences

Introduction

The purpose of this Part is to give effect to the framework decision on Combating Terrorism adopted by the Council of the European Union on 13 June, 2002. Article 34 of the Treaty on European Union provides that the Council may adopt framework decisions for the purpose of the approximation of the laws and regulations of the Member States. It also provides that framework decisions will be binding on the Member States as to the result to be achieved, but will leave to the national authorities the choice of form and methods. The Framework Decision on Combating Terrorism is directed to the approximation of the laws of the Member States in relation to a common definition of terrorist offences, including offences relating to terrorist groups. The Framework Decision also provides for the establishment of extraterritorial jurisdiction in relation to those offences in certain circumstances and for the penalties which they should attract. Dáil and Seanad Éireann approved the participation in the adoption of the Framework Decision on 12 December, 2001 following political agreement on its terms at the Justice and Home Affairs Council on 6 and 7 December, 2001.

Section 4 (Definitions for Part 2)

This defines terms for the purpose of Part 2. Key definitions include “terrorist activity” and “terrorist-linked activity”.

“Terrorist activity” is defined by reference to offences under our law which are committed in or outside the State with the intent of seriously intimidating a population, unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, economic or social structures of a state or an international organisation. The specified offences for the purpose of the definition of terrorist activity are set out in Part 1 of Schedule 2 and comprise those offences under Irish law which correspond to the specified categories of intentional acts set out in Article 1 of the Framework Decision.

“Terrorist-linked activity” is similarly defined by reference to certain further specified offences under our law committed in or outside the State for the purpose of engaging in terrorist activity or in connection with the offences of membership and the new offence, as provided for in section 49 of this Act, of providing assistance to an unlawful organisation under the Offences against the State Act 1939. The other specified offences are set out in Parts 2 and 3 of Schedule 2 and comprise those offences which correspond to specified categories of intentional acts set out in Article 3 of the Framework Decision.

“Terrorist group” is defined by reference to the Framework Decision, i.e. a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences.

Section 5 (Terrorist Groups)

Section 5 makes provision for terrorist groups as defined in section 4 by way of application of the relevant provisions of the Offences against the State Acts, 1939 to 1998, to such groups for the purposes of Article 2 of the Framework Decision.

Subsection (1) provides that terrorist groups which engage in, promote, encourage or advocate the commission of terrorist activity in or outside the State will be unlawful organisations for the purposes of the Offences against the State Acts, 1939 to 1998, and section 3 of the Criminal Law Act 1976.

Subsection (2) provides that the Offences against the State Acts, 1939 to 1998, and section 3 of the Criminal Law Act 1976 will apply to terrorist groups with any necessary modifications. Subsection (3) provides that subsections (1) and (2) are not limited by any other provision of the Act which refers to specific provisions of those Acts and subsection (4) provides that subsections (1) and (2) will apply whether the terrorist group is based in or outside the State.

Section 6 (Terrorist offences)

Section 6 makes provision for terrorist offences.

Subsection (1)(a) provides that a person who engages in terrorist activity or terrorist linked activity in or outside the State is guilty of an offence. It also makes attempting to engage in terrorist activity or in terrorist linked activity and threatening to engage in terrorist activity in or outside the State an offence. Subsection 1(b) provides for certain specified offences relating to unlawful organisations also to be offences when committed outside the State. The offences specified for this purpose comprise the offences of membership of, providing assistance to, and directing, an unlawful organisation. Subsection (1) is made subject to subsections (2) to (4).

Subsections (2) and (3) govern the circumstances in which acts committed outside the State will be offences for the purposes of subsection (1) and correspond to those under which there is a requirement to take extra-territorial jurisdiction in Article 9 of the Framework Decision. Subsection (2) provides that subsection (1) will apply in relation to acts committed outside the State where the act is

(a) committed on board an Irish ship,

(b) committed on an aircraft registered in the State,

(c) committed by a person who is a citizen or is resident in the State,

(d) committed for the benefit of a legal person established in the State,

(e) directed against the State or Irish citizens, or

(f) directed against EU institutions or bodies set up in the State.

Subsection (3) provides that the acts described in subsection (1) will also be offences when committed outside the State in circumstances other than those provided for in subsection (2) but in those cases the taking of proceedings is made subject to section 43 of the Act. Sections 43(2) and 43(3) place restrictions on the taking of proceedings in respect of those offences consistent with the requirement in the Framework Decision to take jurisdiction where a request for extradition is made and is refused.

Subsection (4) provides that subsection (1) will not apply in respect of the activities of armed forces during an armed conflict insofar as those activities are governed by international humanitarian law, or the activities of armed forces of a state in the exercise of their official duties insofar as those activities are governed by other rules of international law.

Subsection (5) ensures that engagement in protest, advocacy, dissent or industrial action will not, of itself, fall within the definition of terrorist activity. To fall within the definition, an offence committed during the course of such activity would have to be a terrorist offence within the meaning of the Act.

Subsection (6) provides that the consent of the Attorney General to a prosecution is required in cases where a person is charged with an offence, in or outside the State, with the intention of unduly compelling a government of a state, other than a Member State of the European Union, to perform or abstain from performing an act, or of seriously destabilising or destroying the political, constitutional, economic or social structures of such a state. This provision allows for consideration by the Attorney General of all the facts where the activity is directed against a state outside the EU.

Subsections (7) and (8) make provision for a rebuttable presumption in certain circumstances in relation to the intent required for the purposes of committing the offence of engaging in or attempting to engage in terrorist activity. Subsection (7) provides that where a person is proved to have committed, or to have attempted to commit, an act that constitutes or would constitute an offence specified in the Part 1 of Schedule 2 and the court is satisfied, having regard to all the circumstances, that it is reasonable to assume that the act was committed with the required intent, the person will be presumed to have committed the act with such intent unless the contrary is shown. Subsection (8) provides for certain specified circumstances which a court may take into account for this purpose. These are whether the act created or was likely to create a collective danger to the lives or the physical integrity of persons, caused or was likely to cause serious damage to a state or international organisation, caused or was likely to result in major economic loss, and any other matters that a court considers relevant.

Subsection (9) makes provision for the Director of Public Prosecutions to co-operate with the prosecuting authorities of other EU Member States and mechanisms established within the European Communities to facilitate co-operation between judicial authorities with a view to centralising prosecution in a single Member State in circumstances where more than one Member State has jurisdiction to try a person for a terrorist offence.

Section 7 (Penalties)

Section 7 makes provision for penalties in respect of terrorist offences as required by Article 5 of the Framework Decision.

Subsection (1) provides that a person guilty of an offence under section 6(1)(a) will be liable to a penalty which is determined by reference to the penalty which would be imposable for the same offence when committed without the special intent required for terrorist offences. The penalty imposable will be the same where it is a sentence of imprisonment fixed by law or imprisonment for life and enhanced maximum penalties will be available in other cases.

Subsection (2) provides that a person guilty of an offence under section 6(1)(b) will be liable to the same penalty which would be imposable in relation to the same act committed in the State. Subsection (3) defines the expression “corresponding offence” for the purposes of the section.

PART 3 (Sections 8 - 11)

Suppression of Hostage-Taking, Terrorist Bombing and Crimes Against Internationally Protected Persons

Introduction

The purpose of this Part is to give effect to three United Nations Conventions dealing with Suppression of Hostage-Taking, Terrorist Bombing and Crimes Against Internationally Protected Persons. The International Convention against the Taking of Hostages was adopted by the General Assembly of the United Nations on 17 December, 1979. The Convention on the Protection and Punishment of Crimes against Internationally Protected Persons was adopted by the General Assembly of the United Nations on 14 December, 1973. The Convention on the Suppression of Terrorism Bombing was adopted by the General Assembly of the United Nations on 15 December, 1997. Ireland signed the latter Convention on 29 May, 1998 but the two other Conventions are no longer open for signature but may be acceded to following enactment of this Act. The provisions of this Part will therefore allow Ireland to accede to or ratify these Conventions.

Section 8 (Interpretation)

This is a definition section, the purpose of which is to identify the relevant Conventions.

Section 9 (Offence of Hostage Taking)

This section sets out the definition of the offence of hostage-taking.

Subsection (1) provides that a person is guilty of the offence of hostage-taking if he or she, in or outside the State, seizes or detains another person, and threatens to kill, injure or continue to detain the hostage in order to compel a state, an international intergovernmental organisation, a person or a group of persons to do, or abstain from doing, any act. Subsection (2) makes it an offence to attempt to commit the offence of hostage-taking.

While subsection (1) provides that the offence can be committed inside or outside the State, this subsection and subsection (2) are subject to subsections (3) and (4) which provide for the circumstances in which the offences can be committed outside the State.

Subsection (3) provides that subsections (1) and (2) apply to an act committed outside the State if—

(a) the act is committed on board an Irish ship,

(b) the act is committed on an aircraft registered in the State,

(c) the act is committed by a citizen of Ireland or by a stateless person habitually resident in the State,

(d) the act is committed in order to compel the State to do or abstain from doing an act, or

(e) the hostage is a citizen of Ireland.

Subsection (4) provides that the acts described in subsections (1) and (2) will also be offences when committed outside the State in circumstances other than those referred to in subsection (3), but in those cases the taking of proceedings is made subject to section 43 of the Act. Sections 43(2) and 43(3) place restrictions on the taking of proceedings in respect of those offences consistent with the requirement in the Convention to take jurisdiction where a request for extradition is made and refused.

Subsection (5) provides that subsections (1) and (2) will not apply in respect of any act of hostage-taking that constitutes a grave breach of the Geneva Conventions of 1949 and the Additional Protocols to those Conventions, as referred to in the Geneva Conventions Act 1962.

Subsection (6) provides that a person guilty of an offence under this section is liable on conviction on indictment to imprisonment for life.

Section 10 (Offence of terrorist bombing)

This section creates the offences related to terrorist bombing.

Subsection (1) provides that a person is guilty of an offence if he or she, in or outside the State, unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility, with intent to cause death or serious bodily injury.

Subsection (2) provides that a person is guilty of an offence if he or she, in or outside the State,

(a) unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place, facility or system referred to in any paragraph of subsection (1) with intent to cause extensive destruction to that place, facility or system, and

(b) the destruction results in or is likely to result in major economic loss.

Subsection (3) provides that a person who attempts to commit an offence under subsection (1) or (2) is guilty of an offence.

While in subsections (1) and (2) the offence is stated to occur whether it is committed in or outside the State, these subsections as well as subsection (3) are subject to subsections (4) and (5) which provide for the circumstances in which the offences can be committed outside the State.

Subsection (4) provides that the behaviour described in subsections (1) to (3) is an offence if committed outside the State if the act is committed—

(a) on board an Irish ship,

(b) on an aircraft registered in or operated by the State,

(c) by a citizen of Ireland or by a stateless person habitually resident in the State,

(d) against a citizen of Ireland,

(e) against a state or government facility of the State abroad, including an embassy or other diplomatic or consular premises of the State, or

(f) in order to compel the State to do or abstain from doing an act.

Subsection (5) provides that the acts described in subsections (1) to (3) will also be offences when committed outside the State in circumstances other than those referred to in subsection (4), but in those cases the taking of proceedings is made subject to section 43 of the Act. Sections 43(2) and 43(3) place restrictions on the taking of proceedings in respect of those offences consistent with the requirement in the Convention to take jurisdiction where a request for extradition is made and refused.

Subsection (6) provides that subsections (1) to (3) do not apply in respect of the activities of armed forces during an armed conflict insofar as those activities are governed by international humanitarian law, or the activities of military forces of a state in the exercise of their official duties insofar as those activities are governed by other rules of international law.

Subsection (7) provides that a person guilty of an offence under this section is liable on conviction on indictment to imprisonment for life. Subsection (8) provides that a word or expression that is used in the section has the same meaning as it has in the Terrorist Bombing Convention. Subsection (9) defines explosive or other lethal device which is in keeping with the definition in the Convention.

Section 11 (Offences against internationally protected persons)

Section 11 deals with offences against the person, liberty or property of internationally protected persons.

Subsection (1)(a) provides that an act done outside the State against an internationally protected person, that, if done in the State, would constitute one of the offences specified in Part 1 of Schedule 6, is an offence punishable as if done in the State. Subsection 1(b) provides that an act done outside the State in connection with an attack on premises or vehicles of internationally protected persons that, if done in the State, would constitute an offence specified in Part 2 of Schedule 6, is an offence punishable as if done in the State.

Subsection (2) provides that it is an offence to attempt or threaten to commit an offence under subsection (1).

While in subsection (1) the offence is stated to occur when it is committed outside the State, subsection (1) and (2) are subject to subsections (3) and (4) which provide for the circumstances in which the offences can be committed outside the State.

Subsection (3) provides that subsections (1) and (2) apply to an act committed outside the State if the act is committed—

(a) on board an Irish ship,

(b) on an aircraft registered in the State,

(c) by a citizen of Ireland, or

(d) against a person who enjoys the status of an internationally protected person by virtue of functions exercised on behalf of the State.

Subsection (4) provides that the acts described in subsections (1) and (2) will also be offences when committed outside the State in circumstances other than those referred to in subsection (3), but in those cases the taking of proceedings is made subject to section 43 of the Act. Sections 43(2) and 43(3) place restrictions on the taking of proceedings in respect of those offences consistent with the requirement in the Convention to take jurisdiction where a request for extradition is made and refused.

Subsection (5) provides that a person guilty of an offence under this section is liable on conviction to the same penalty applicable if the offence had been committed in the State, but for the offence of threatening to commit an offence the sanction is imprisonment for a term not exceeding 10 years.

Subsection (6) provides that a word or expression that is used in this section has the same meaning as in the Internationally Protected Persons Convention, subject to subsection (7).

Subsection (7) provides for the definition of internationally protected person.

PART 4 (Sections 12 - 42)

Suppression of Financing of Terrorism

Introduction

The purpose of this Part is primarily to provide in Irish law the measures necessary to enable ratification by Ireland of the 1999 United Nations Convention for the Suppression of the Financing of Terrorism (the Convention). It does this by creating a new offence of financing terrorism and inserting into the Criminal Justice Act 1994, (the 1994 Act) a scheme for freezing and confiscating funds used or allocated for use in connection with the offence of financing terrorism, or funds that are the proceeds of such an offence. This Part also introduces a procedure based on the Proceeds of Crime Act 1996, (the 1996 Act) for the freezing, restraint or confiscation of funds, by means of a court order, in the possession or control of a person that are being used or may be intended for use in committing, or facilitating the commission of, a terrorist offence or an offence of financing terrorism. This procedure is provided for in sections 14 to 20 and the scheme based on the 1994 Act is provided for at sections 21 to 42.

Section 12 (Interpretation of Part 4)

This defines terms for the purpose of Part 4. The term “funds” is similar to the definition in Article 1 of the Convention.

Section 13 (Offence of financing terrorism)

Subsection (1) creates an offence of financing terrorism, based on the offence defined in Article 2.1 of the Convention. It provides that a person is guilty of the offence of financing terrorism if he or she, in or outside the State, directly or indirectly, unlawfully and wilfully, provides, collects or receives funds intending that they be used or knowing that they will be used to carry out an act that is an offence under Irish law and within the scope of a treaty listed in the annex to the Convention, or any other act that is intended to cause death or serious bodily injury to a civilian or other person not taking part in an armed conflict, the purpose of which is to intimidate a population or to compel a government or an international organisation to do or abstain from doing any act.

The Conventions listed in the annex to the Convention are the

Convention for the Suppression of Unlawful Seizure of Aircraft;

Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation;

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents;

International Convention against the Taking of Hostages;

Convention on the Physical Protection of Nuclear Material;

Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation.

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.

Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf.

International Convention for the Suppression of Terrorist Bombings.

Subsection (2) extends the scope of the offence under subsection (1) to attempts to commit the offence.

Subsection (3) creates a further offence of financing terrorism so as to include funds that are intended for use, or knowing that they will be used, for the benefit or purposes of a terrorist group, as defined in section 4 of this Act, or to carry out a terrorist act (other than one referred to in subsection (1)) that is an offence under section 6. This is aimed at incorporating the terrorist offences created in Part 2 of this Act as offences for which it will be an offence to finance and is additional to the requirements of the Convention.

Subsection (4) extends the scope of the offence in subsection (3) to attempts to commit the offence.

Subsection (5) ensures that an offence is committed under subsections (1) or (3)(b) whether or not the funds are actually used to carry out a terrorist act.

Subsections (6) and (7) provide for the circumstances in which acts committed outside the State will be offences. In keeping with the Convention, subsections (1) and (2) apply to acts committed outside the State if the act—

(a) is committed on board an Irish ship,

(b) is committed on an aircraft registered in or operated by the State,

(c) is committed by a citizen of Ireland or by a stateless person habitually resident in the State,

(d) is directed towards or results in the carrying out of an act referred to in subsection (1) in the State or against a citizen of Ireland,

(e) is directed towards or results in the carrying out of an act referred to in subsection (1) against a State or Government facility abroad, including an embassy or other diplomatic or consular premises of the State, or

(f) is directed towards or results in the carrying out of an act referred to in subsection (1) in an attempt to compel the State to do or abstain from doing any act.

Subsection (7) provides that the acts described in subsections (1) and (2) will also be offences when committed outside the State in circumstances other than those referred to in subsection (6), but in those cases the taking of proceedings is made subject to section 43 of the Act. Sections 43(2) and 43(3) place restrictions on the taking of proceedings in respect of those offences consistent with the requirement in the Convention to take jurisdiction where a request for extradition is made and refused.

Subsection (8) establishes the penalty structure for the offences of financing terrorism. The penalties range from the maximum that can be imposed by the District Court for minor manifestations of the offence to an unlimited fine and/or up to 20 years imprisonment on conviction on indictment.

Section 14 (Interim order freezing certain funds)

This section mirrors section 2 of the 1996 Act. Where the High Court is satisfied, on foot of an ex parte application to it by a member of the Garda Síochána of at least Chief Superintendent rank, that a person possesses or controls funds that are being used or may be intended for use in committing, or facilitating the commission of, a terrorist offence or a terrorist financing offence, it may prohibit a person from disposing of the funds for a period not exceeding 40 days, as may be specified by the Court, or diminishing their value over that period. The order may contain whatever provisions, conditions and restrictions are deemed to be necessary or expedient by the Court.

Section 15 (Interlocutory order)

This section mirrors section 3 of the 1996 Act. Where the High Court is satisfied, on foot of an application by a member of the Garda Síochána of at least Chief Superintendent rank, that a person possesses or controls funds that were being used or may be intended for use in committing or facilitating the commission of a terrorist offence or a terrorist financing offence, it shall make an order prohibiting a person from disposing of the funds or diminishing their value. The order cannot be made if the Court is satisfied that to do so would result in a serious risk of injustice and, when made, it may contain whatever provisions, conditions and restrictions are deemed necessary or expedient by the Court.

Section 16 (Disposal order)

This section mirrors section 4 of the 1996 Act. It becomes relevant when an interlocutory order under section 15 of this Act has been in operation for at least 7 years in respect of funds. After that time, the High Court, on application by a member of the Garda Síochána of at least Chief Superintendent rank, may by order direct that all or part of the funds be transferred to either the Minister for Finance or some other person determined by the Court. Such transfer can be subject to such terms and conditions as the court may specify. The Court will make a disposal order unless it is satisfied that the funds were not used nor intended for use in committing or facilitating a terrorist offence or a terrorist financing offence or that there would be a serious risk of injustice.

Section 17 (Ancillary orders and provision in relation to certain profits or gains, etc.)

This section mirrors section 5 of the 1996 Act. It empowers the High Court, on application by a member of the Garda Síochána not below the rank of Chief Superintendent, to make orders that will enable an interim or interlocutory order to have full effect. It also provides that any order under section 14, 15 or 16 of this Act can be expressed to apply to any profit, gain or interest, any dividend or other payments or any other funds.

Section 18 (Evidence and proceedings relating to interim and other orders)

This section largely mirrors section 8 of the 1996 Act. It provides that a statement by a member of the Garda Síochána not below the rank of Chief Superintendent that he or she believes that the funds in respect of which an interim or interlocutory order is sought are in the possession or control of the respondent and are used or intended for use in committing or facilitating a terrorist offence or a terrorist financing offence is a statement of evidence in the matter. The High Court must be satisfied that there are reasonable grounds for that belief.

The standard of proof required to determine any question arising under sections 14, 15, 16, 17, 19 and 20 is that applicable to civil proceedings (as in the 1996 Act).

Section 19 (Compensation)

This section mirrors section 16 of the 1996 Act. It sets out the circumstances in which an order under sections 14, 15 or 16 can lead to the payment of compensation to a person by the Minister for Finance as the Court considers just in respect of any loss incurred by the person concerned.

Section 20 (Application of certain provisions of Act of 1996)

Rather than unnecessarily repeat sections 6, 7 and 9 to 15 of the 1996 Act, this section provides that they will apply, with necessary modifications, to an interim, interlocutory or disposal order made under this Part of this Act.

Section 21 (Amendment of section 3 of Act of 1994)

This section extends the scope of some definitions in the interpretation section of the 1994 Act and introduces some new definitions. This is necessary as areas of the 1994 Act are being extended to include within its parameters an offence of financing terrorism (at present the 1994 Act is largely concerned with drug trafficking offences and offences other than drug trafficking offences which would not be terrorism financing offences). The confiscation and restraint provisions relating to these other offences do not at present comprehend offences of financing terrorism.

Section 22 (Amendment of Part II of Act of 1994 — new sections 8A to 8E)

This section inserts five new sections (8A to 8E) after section 8 of the 1994 Act. These new sections give effect in Irish law to the relevant provisions of Article 8 of the Convention.

Section 8A: Confiscation orders relating to offence of financing terrorism.

This section empowers the courts to make confiscation orders against persons convicted of an offence of financing terrorism who hold funds subject to confiscation. “Funds subject to confiscation” is defined as “funds used or allocated for use in connection with an offence of financing terrorism or funds that are the proceeds of such an offence.” The procedures provided in this section are similar to those in section 4 of the 1994 Act relating to the confiscation of the benefits of drug trafficking.

Section 8B: Assessing the value of funds subject to confiscation.

This section makes provision for assessing the value of a person's funds subject to confiscation. A court can make certain assumptions (set out in subsection (2)) for the purpose of assessing the value of funds subject to confiscation. The onus of proving that the assumptions are inapplicable is placed on the defendant. The section is similar to section 5 of the 1994 Act concerning the value of a person's proceeds from drug trafficking.

Section 8C: Amount to be recovered under a confiscation order made under section 8A.

This section provides that the amount to be recovered under a confiscation order shall be equal to the amount assessed by the court to be the value of the defendant's funds subject to confiscation. It is similar to section 6 of the 1994 Act relating to the value of the proceeds of drug trafficking.

Section 8D: Re-assessment of whether defendant holds funds subject to confiscation.

This section provides a mechanism for re-assessing whether a defendant holds funds subject to confiscation in cases where a court has previously determined that he or she did not hold such funds. It can arise where new evidence, not considered by the court in its original determination, is provided in an application to the court by the Director of Public Prosecutions. No such application will be determined by the court if it is made more than 6 years after the defendant was convicted. The section is similar to section 7 of the 1994 Act concerning the re-assessment of whether a defendant has benefited from drug trafficking.

Section 8E: Revised assessment of funds subject to confiscation

This section allows the Director of Public Prosecutions to make, or cause to be made, an application to the court when of the opinion that the real value of the funds subject to confiscation is greater than that originally assessed by the court to be the amount to be recovered under a confiscation order. The court, if satisfied that the real value is greater than the assessed value, can make a fresh determination of the amount to be recovered. The section is similar to section 8 of the 1994 Act concerning revised assessments of the proceeds of drug trafficking.

Section 23 (Amendment of section 9 of Act of 1994)

This is a technical amendment to section 9 of the 1994 Act (Confiscation orders: offences other than drug trafficking offences) which will ensure that confiscation orders relating to an offence of financing terrorism are not confused with, or dealt with similarly to, confiscation orders relating generally to offences other than drug trafficking offences. The offences of financing terrorism will be separate specified offences under the relevant insertions into, and amendments to, the 1994 Act which are being made in this Act.

Section 24 (Amendment of section 10 of Act of 1994)

This section inserts into section 10 of the 1994 Act (Statements relevant to making confiscation orders) provision for the tendering to a court by the Director of Public Prosecutions and the defendant of statements about matters relating to the making of confiscation orders which, in the case of a conviction for an offence of financing terrorism, shows that the defendant holds funds subject to confiscation. At present, section 10 of the 1994 Act is concerned with matters relevant to the determination of whether, in the case of a conviction for a drug trafficking offence, the defendant has benefited from drug trafficking and in the case of a conviction for an offence other than drug trafficking, he or she has benefited from that offence and has obtained property as a result of or in connection with the commission of that offence and the benefit is the value so obtained. The statements under this section will narrow down the areas of dispute between the parties and thus assist the court in its task of assessing whether a confiscation order should be made against the defendant and, if so, the amount to be recovered under the order.

Section 25 (Amendment of section 11 of Act of 1994)

Section 11 of the 1994 Act (Provision of information by defendant) allows a court to order a defendant to provide whatever information it requires in connection with a confiscation hearing in the case of drug trafficking and other offences. This amendment ensures that that provision also applies to confiscation hearing relating to an offence of financing terrorism.

Section 26 (Amendment of section 12 of Act of 1994)

Section 12 of the 1994 Act (Supplementary provisions concerning confiscation orders) deals with matters relating to the making of confiscation orders which are not dealt with in other sections. Subsection (1) of section 12 of the 1994 Act enables the court in deciding whether to make a confiscation order to take account of the possibility that victims of the offender may have civil claims against the offender in respect of the conduct constituting the offence. That provision does not apply to non-drug trafficking confiscation orders and the amendment to subsection (1) will ensure that it will also not apply to financing of terrorism confiscation orders.

Subsection (4) of section 12 of the 1994 Act provides that where the court is satisfied as to any matter relevant to determining the amount that might be realised from the property available for confiscation, it may issue a certificate setting out its opinion. The effect of the amendment to subsection (4) is to extend that provision in the case of a conviction for an offence of financing terrorism to the value of the funds subject to confiscation.

Section 27 (Amendment of section 13 of Act of 1994)

Section 13 of the 1994 Act (Power of High Court where defendant has died or is absent) provides for the making of confiscation orders by the High Court where an offender dies or absconds. The amendments to section 13 will ensure that the power of the High Court in that respect will include the making of a confiscation order against a defendant in the case of a conviction for an offence of financing terrorism.

Section 28 (Amendment of section 17 of Act of 1994)

Section 17 of the 1994 Act (Variation of confiscation orders made by virtue of section 13) applies in cases where the High Court made a confiscation order where the defendant has absconded and has later ceased to be an absconder. This amendment extends the provisions of section 17 of the 1994 Act to include funds subject to confiscation in the case of an offence of financing terrorism. The effect of this is that if the defendant or Director of Public Prosecutions applies to the High Court and the High Court is satisfied of certain matters, it may make a fresh determination of the value of the defendant's funds subject to confiscation.

Section 29 (Amendment of section 18 of Act of 1994)

In amending section 18 of the 1994 Act (Increase in value of realisable property), this section is concerned with the situation where, in the case of an offence of financing terrorism, confiscation is ordered for an amount which is less than the amount assessed to be the value of the person's funds subject to confiscation, and it subsequently comes to light that a greater amount is available to satisfy a confiscation order.

Section 30 (Amendment of section 23 of Act of 1994)

Section 23 of the 1994 Act (Cases in which restraint orders may be made) defines the circumstances in which the High Court may make restraint orders under section 24 of that Act with the intention of ensuring that funds will be available to satisfy any confiscation order that might be imposed under section 4 (drug trafficking offences) or 9 (other offences). This amendment allows the High Court to also make restraint orders in respect of an offence of financing terrorism. The High Court may make a restraint order where proceedings have been instituted or an application has been made in respect of the defendant under section 7, 8, 8D, 8E, 13 or 18, the proceedings or application have or has not concluded and either a confiscation order has been made or it appears to the court that there are reasonable grounds for thinking that such an order may be made. The High Court may also make a restraint order where it is satisfied that proceedings are to be instituted and it appears that a confiscation order may be made in connection with this offence.

Section 31 (Amendment of section 28 of Act of 1994)

Section 28 of the 1994 Act (Bankruptcy of defendant, etc.) governs the relationship between bankruptcy proceedings and the restraint and confiscation proceedings set out in that Act, where a person who holds realisable property is adjudged bankrupt. Subsection (3) of section 28 is concerned with the situation where a person who is adjudicated bankrupt has made a gift caught by the Act. No decision whether a gift is void can be made under section 57, 58 or 59 of the Bankruptcy Act 1988 when, inter alia, an application has been made in respect of the defendant under sections 7, 8, 13 or 18 of the 1994 Act and has not been concluded. The effect of this amendment is to add to those provisions applications under section 8D (Re-assessment of whether defendant holds funds subject to confiscation) and 8E (Revised assessment of funds subject to confiscation). This amendment ensures that funds subject to confiscation for an offence of financing terrorism are fully comprehended by section 28.

Section 32 (Amendment of section 32 of Act of 1994)

Section 32 of the 1994 Act (Measures to be taken to prevent money laundering) imposes obligations on banks and financial bodies (“designated bodies”) to take certain measures (e.g., identification of customers) to prevent and assist in the detection of money laundering. Subsection 9A of the 1994 Act, inserted by section 14 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, obliges a designated body to adopt measures to prevent and detect the commission of an offence under section 31 (Money laundering etc.) of the 1994 Act. This amendment to subsection 9A obliges a designated body to also adopt measures to prevent and detect the commission of an offence of financing terrorism. The amendment to subsection 9B of section 32 of the 1994 Act (also inserted by the 1997 Act) makes a similar change in relation to the training of directors, other officers and employees of designated bodies for the purpose of enabling them to identify transactions which may relate to the commission of an offence of financing terrorism.

Section 33 (Amendment of section 46 of Act of 1994)

Section 46 of the 1994 Act (External confiscation orders, etc.) provides a procedure for the enforcement, by means of orders under Irish law, of orders made by the courts of designated countries for the confiscation of property which is liable to confiscation in accordance with orders made by the court in the other country for the purpose of the recovery of payments or other rewards received as a result of or in connection with drug trafficking or its value. Similarly, it provides for the recovery of property obtained as a result of or in connection with conduct corresponding to an offence for which a confiscation order could be made under section 9 of that Act or the value of such property. This amendment to section 46 of the 1994 Act extends that procedure to the recovery of funds corresponding to funds subject to confiscation under this Act.

Section 34 (Amendment of section 47 of Act of 1994)

Section 47 of the 1994 Act (External forfeiture orders, etc.) provides a procedure for the enforcement, by means of orders under Irish law, of orders made by the courts of designated countries for the forfeiture of property in respect of which an offence to which the section applies has been committed or which was used or intended to be used in connection with the offence. These orders are known as “external forfeiture orders”. The amendment to this section adds an offence of financing terrorism to the offences to which section 47 of the 1994 Act applies.

Section 35 (Amendment of section 55 of Act of 1994)

Section 55 of the 1994 Act (Search etc. for material relevant to investigation outside State) provides that in designated countries the provisions of Irish law authorising a judge of the District Court to issue a search warrant for obtaining evidence of an offence shall apply so as to authorise the issue of a similar warrant for obtaining evidence of a similar offence under the law of the designated country. The purpose of this amendment is to include in section 55 of the 1994 Act references to an offence of financing terrorism — that section already covers drug trafficking and offences in respect of which a confiscation order can be made under section 9 of the 1994 Act.

Section 36 (Amendment of section 57 of Act of 1994)

This amendment to section 57 of the 1994 Act (Disclosure of information) extends the obligation of persons or bodies (designated bodies) under section 32 of the 1994 Act to report any suspicion to the Garda Síochána of an offence of financing terrorism being committed or having been committed in relation to the business of the person or body. A person charged in law with the supervision of such a person or body is likewise obliged to report any such suspicion. Similar obligations already apply, under section 57 of the 1994 Act, to a money laundering etc., offence.

Section 37 (Amendment of section 58 of Act of 1994)

This section amends subsection (1) of section 58 of the Act of 1994 (Offences of prejudicing investigation) so that it will be an offence for a person who knows or suspects that an order in relation to an investigation into whether a person holds funds subject to confiscation has been made or applied for, or a search warrant has been issued, to make any disclosure which is likely to prejudice the investigation. Section 58 already makes that provision in relation into drug trafficking and other offences in respect of which a confiscation order can be made.

Section 38 (Amendment of section 61 of Act of 1994)

Section 61 of the 1994 Act (Forfeiture orders) empowers a court to order the forfeiture of property which is used or intended for use in the commission of a crime or is unlawfully in a person's possession. Section 17 of the Offences against the State (Amendment) Act 1998 inserted a new subsection (1A) into section 61 of the 1994 Act. It states that where a person has been convicted of one of the offences referred to in the section, including explosive substances and firearms offences, and a forfeiture order may be made in the case of that person, the court shall make the forfeiture order unless it is satisfied that there would be a serious risk of injustice if it made the order. The purpose of this amendment is to add terrorist offences under section 6 of this Act to the offences listed in the above mentioned subsection (1A).

Section 39 (Amendment of section 63 of Act of 1994)

The purpose of section 63 of the 1994 Act (Order to make material available) is to allow the Garda Síochána to apply to the District Court, for the purpose of an investigation into drug trafficking, a money laundering offence or an offence in respect of which a confiscation order might be made, for an order for any relevant material or access to it. The purpose of this amendment is to add the commission of an offence of financing terrorism and whether a person holds funds subject to confiscation to the offences for which a member of the Garda Síochána may apply to a judge of the District Court for the purpose of such an investigation.

Section 40 (Amendment of section 64 of Act of 1994)

Section 64 of the 1994 Act (Authority for search) enables a member of the Garda Síochána to apply to the District Court for a search warrant in connection with investigations into drug trafficking or an offence under section 31 of the 1994 Act (Money laundering etc.) or an investigation into whether a person has benefited from drug trafficking or an offence in respect of which a confiscation order can be made under section 9 of that Act. The effect of this amendment is to add to those offences for which a search warrant may be applied investigations into the commission of an offence of financing terrorism and whether a person holds funds subject to confiscation.

Section 41 (Amendment of section 65 of Act of 1994)

Section 65 of the 1994 Act (Compensation) empowers the High Court to order compensation to be paid to a person in circumstances where the person's property is affected by an order of restraint or realisation under that Act and the proceedings to which those orders relate do not result in his or her conviction or the conviction is quashed. The purpose of this amendment is to add an offence of financing terrorism to the offences in respect of which compensation can be paid in such circumstances.

Section 42 (Power to make regulations)

This section empowers the Minister for Finance to make regulations directed to freezing terrorist funds which will enable breach of the regulations to be an indictable offence. At present, breach of such regulations can only be tried summarily. The regulations will enable acts adopted by the institutions of the European Communities which, in the opinion of the Minister for Finance, are for the purpose of, or will contribute to, combating terrorism through the adoption of specific restrictive measures, directed at persons, groups or entities, for the identification, detection, freezing or seizure of their assets of any kind, to have full effect.

PART 5 (Sections 43 - 47)

Miscellaneous Matters

Introduction

This Part makes provision for a number of matters relating to proceedings in connection with offences under the Act, including provision for offences committed outside the State, evidentiary matters and liability for offences by bodies corporate.

Section 43 (Proceedings relating to offences committed outside the State)

Subsection (1) provides that proceedings for an offence under sections 6, 9, 10, 11 or 13(1) or (2) committed outside the State can be taken anywhere in the State and may be treated as if the offence had been committed in that place.

Subsection (2) provides that the consent of the Director of Public Prosecutions is required for a prosecution for those offences, subject to the usual qualification permitting the exercise of the ordinary powers of arrest, charge and remand in appropriate cases.

Subsection (3) provides for the circumstances in which the Director may take or consent to the taking of further proceedings in relation to offences committed outside the State, under the provisions specified in subsection (1), in the circumstances referred to in sections 6(3), 9(4), 10(5), 11(4) or 13(7). The circumstances concerned relate to where a request for extradition under Part II of the Extradition Act, 1965, has been made and has been refused or where a European Arrest Warrant has been received from an issuing state for the purpose of bringing proceedings and a final determination has been made that the European Arrest Warrant should not be endorsed or that the person should not be surrendered or where because of special circumstances (including the likelihood of refusal of extradition/surrender) it is expedient that proceedings be taken against the person.

Subsection (4) clarifies the relevant Convention or provisions of the relevant Convention to which references in subsection (3) relate.

Section 44 (Evidence in proceedings under the Act)

Section 44 provides for evidentiary matters relating to certain terms and circumstances provided for in the Act and allows for evidence by certificate.

Section 45 (Liability for offences by bodies corporate)

This is a standard provision which enables persons working in a body corporate as well as the body corporate itself to be proceeded against for an offence under the Act.

Section 46 (Double jeopardy)

Because parties to the Conventions and the Framework Decision are required to take extraterritorial jurisdiction over offences, prosecutions for the same act would be possible in a number of countries. This section takes account of that by providing that where a person has been acquitted or convicted outside the State of an offence, then the person shall not be proceeded against for an offence under the Act in respect of the act constituting the first-mentioned offence.

Section 47 (Expenses)

This is a standard provision providing for the payment of any expenses arising under the Act be paid out of money provided by the Oireachtas.

PART 6 (Sections 48 - 60)

Amendment of Other Acts

Introduction

This Part makes provision for certain amendments to the Offences against the State Acts 1939-1998, as well as amendments to certain other Acts arising from changes in the law being made in earlier Parts of the Act.

This Part will also make provision for a new procedure in connection with the existing provision in section 22 of the Offences against the State Act 1939 (1939 Act) providing for the forfeiture of the property of unlawful organisations in respect of which a suppression order has been made. Section 22 of the 1939 Act provides that all such property shall become and be forfeited to and vested in the Minister for Justice, Equality and Law Reform. The Offences against the State (Amendment) Act 1985, (1985 Act) makes provision for a dedicated procedure whereby moneys held in a bank on behalf of an unlawful organisation may be recovered by the Minister. This Part will supplement the 1985 Act by providing for a procedure whereby property, other than moneys held in a bank, may be recovered and is based in part on the 1985 Act and in part on the Proceeds of Crime Act 1996, (1996 Act).

Section 48 (Amendment of Section 21 of Act of 1939)

Section 48 will increase the maximum penalty for membership of an unlawful organisation by amending section 21 of the 1939 Act. The section provides that a person found guilty of this offence will be liable to a fine of up to €3,000 and/or imprisonment for up to 12 months in the case of a summary conviction, and an unlimited fine and/or imprisonment for up to 8 years in the case of a person found guilty on conviction on indictment.

Section 49 (Amendment of Act of 1939 — new section 21A)

Section 49 will create a new offence by inserting a new section (section 21A) into the 1939 Act. It provides that it will be an offence to knowingly render assistance to an unlawful organisation in the performance or furtherance of an unlawful object. A person found guilty of this new offence will be liable to the same penalties as those provided in the preceding section in the case of membership.

Section 50 (Amendment of section 22 of Act of 1939)

Section 50 amends section 22 of the 1939 Act to update and extend the definition of property in that section in line with the provision being made in section 21 of the Act for the purposes of the Criminal Justice Act 1994.

Section 51 (Amendment of Act of 1939 — new sections 22A to 22I)

This section inserts nine new sections (22A to 22I) after section 22 of the 1939 Act and provides for a new procedure directed to the recovery of the property of unlawful organisations, other than moneys held in a bank, which stands forfeited to the Minister by virtue of section 22. These new sections provide as follows:—

Section 22A: Definitions for, and operation of, sections 22B to 22I

This section provides for certain definitions used for the purposes of the new procedure. The “Minister” is defined as the Minister for Justice, Equality and Law Reform.

Section 22B: Interim order respecting specified property

This section, which is based on section 2 of the 1985 Act and section 2 of the 1996 Act, makes provision whereby the High Court may, on the ex parte application of the Minister, make an interim order in respect of specified property which the Minister is of the opinion is the property of an unlawful organisation and is forfeited and vested in the Minister by virtue of section 22 of the 1939 Act. Provision is also made for an interim order to be discharged on the application of any person claiming ownership of the property where the court is satisfied that the property is not the property of an unlawful organisation and for the interim order to lapse twelve months after it is made unless an application for a disposal order in respect of the property is brought during that period.

Section 22C: Disposal order respecting specified property

This section, which is based on section 4 of the 1996 Act, provides for the making of a disposal order by the High Court which authorises the Minister to dispose of the property which is the subject of the interim order on the application of the Minister unless the High Court is satisfied that the property concerned is not the property of an unlawful organisation. Provision is made for notice of any application for a disposal order to be given to any person named in the interim order and any other persons whom the court may direct, and for any person claiming ownership of the property to be given an opportunity to be heard before an order is made.

Section 22D: Ancillary orders and provision in relation to certain profits or gains, etc.

This section, which is based on section 5 of the 1996 Act, makes provision for the making of ancillary orders to enable an interim order to have full effect.

Section 22E: Evidence

This section, which is based on section 5 of the 1985 Act, provides that production in court in any proceedings of a document signed by the Minister and stating that property specified in the document would, but for the operation of section 22, have been the property of an unlawful organisation, shall be evidence of that fact unless the contrary is shown.

Section 22F: Seizure of certain property

This section, which is based on section 15 of the 1996 Act, authorises members of the Gardaí and officers of customs and excise to seize property which is the subject of an interim or disposal order in order to prevent its removal from the State.

Section 22G: Compensation

This section, which is based on section 16 of the 1996 Act, provides for the circumstances in which a payment of compensation in respect of any loss incurred by a person may be ordered by the High Court arising from the making of an interim or disposal order.

Section 22H: Application of certain provisions of Act of 1996

This section makes provision for the application of sections 6, 7 and 9 to 13 of the 1996 Act with necessary adaptions for the purposes of interim and disposal orders made under this Part.

Section 22I: Immunity from proceedings

This section, which is based on section 14 of the 1996 Act, provides for immunity from proceedings for persons arising from their compliance with an interim or disposal order.

Section 52: Amendment of section 38 of Act of 1939.

Section 49 of the Offences Against the State Act 1939 provides that if two or more Special Criminal Courts are in existence at the time of sending forward a person for trial, the Director of Public Prosecutions must apply to try the case in the court he selects. For the purposes of the operation of section 49, this section provides that a court established under the Act is only in existence if it has not fewer than three members appointed to it.

Section 53: Amendment of section 49 of Act of 1939.

This provision amends section 49 of the Offences against the State Act 1939 to provide for the transfer of a case from a Special Criminal Court (to which the case has been returned for trial) to another Special Criminal Court. Section 53 amends section 49 of the Act of 1939 by renumbering it as section 49(1) and adding a number of new subsections.

Subsection (2) provides that a trial that is to be heard before a Special Criminal Court may be transferred by the Court, on its own motion or on the application of a triable person or the Director of Public Prosecutions, to another Special Criminal Court, but only if the first Court decides that it would be in the interests of justice to do so.

Subsection (3) provides that in deciding whether it is in the interests of justice to transfer a trial, the Special Criminal Court may consider any factors it thinks relevant, including (a) whether the transfer would be in the interests of the expeditious administration of justice, and (b) whether the transfer would prejudice the triable person or persons or the prosecution.

Subsection (4) provides that a trial may be transferred under this section notwithstanding that an order has been made under subsection (1)(e) in relation to the triable person or persons. Subsection 1(e) provides that if two or more Special Criminal Courts are in existence, the DPP can apply to a court to have the trial before that court.

Subsection (5) provides that where two or more triable persons are to be tried jointly, the decision of the Special Criminal Court to transfer the trial applies in relation to all of them.

Subsection (6) provides that subsection (5) does not affect the right of a triable person to apply for a separate trial and, if the application is granted, then to apply for a transfer of that trial.

Subsection (7) provides that the decision of a Special Criminal Court to transfer a trial is final and unappealable.

Subsection (8) defines “triable person”.

Section 54 (Amendment and commencement of Section 2 of Act of 1985)

Section 54 amends section 2 of the 1985 Act.

The effect of the amendment will be to provide that the powers under section 2 of the 1985 Act come into operation on the enactment of the Act.

Section 55 (Amendment of Section 8 of Act of 1985)

Section 55 will amend section 8 of the 1985 Act to make clear that property, other than moneys, held by a person for the benefit or use of an unlawful organisation is also deemed to be the property of that organisation.

Section 56 (Amendment of Defence Act 1954)

This section provides for the restatement and amendment of section 169 and the amendment of section 192 of the Defence Act 1954. Section 169, as amended by the Criminal Justice Act 1990, deals with the trial of civil offences by court-martial. Section 169(3) provides that where a person, charged under the section, is convicted by court-martial of certain offences (e.g. genocide) that person will be punished accordingly. Paragraph (a) of section 56 restates and amends section 169(3) to provide that where a person is convicted by court-martial of an offence under the Act, the person will be liable to the penalty provided for that offence on conviction by a criminal court.

Section 192 of the Defence Act 1954, deals with the jurisdiction of courts-martial. Subsection (2) provides that a limited court-martial will not have jurisdiction to try certain offences (e.g. treason and murder) and subsection (3) provides that a court-martial shall not have jurisdiction to try any person subject to military law for certain offences (e.g. treason, murder, manslaughter, rape and genocide) unless the offence was committed while the person was on active service. Paragraphs (b) and (c) of section 56 will provide that the offences under the Act will also be excluded from the jurisdiction of courts-martial in similar circumstances.

Section 57 (Amendment of Extradition Act 1965)

The purpose of subsection 1 of section 57 is to meet the requirements imposed by Article 14 of the International Convention for the Suppression of the Financing of Terrorism 1999 and Article 11 of the International Convention for the Suppression of Terrorist Bombings, 1997. Section 57(1) will amend section 3(1) of the Extradition Act 1965, to provide that offences under section 10 and section 13 of the Act cannot be regarded as political offences for the purposes of extradition.

Subsection (2) expands the definition of ‘country’ in section 3(1) of the 1965 Act to enable Ireland to be in a position to enter into extradition agreements with territories as well as countries.

Subsection (3) amends section 8 of the 1965 Act. Section 8 provides for the making of orders by the Minister for Foreign Affairs to give effect in Irish law to extradition arrangements between Ireland and other countries. As with subsection (2), the term “country” is being expanded to allow for treaties with a range of territories.

Section 58 (Amendment of Extradition (Amendment) Act 1994)

This section will amend the First Schedule to the Extradition (Amendment) Act, 1994, in order to include offences under section 6(1)(a), 9 and 11 of the Act. This will mean that these offences cannot be regarded as political offences for the purpose of extradition between parties to the European Convention on the Suppression of Terrorism.

Section 59 (Amendment of Criminal Procedure Act 1967)

Section 59 amends the Criminal Procedure Act 1967, in two respects. In effect, it provides (paragraph (a)) that a person charged with the offence of murder or attempted murder contrary to sections 6 or 11 of the Act may not, on a plea of guilty, be dealt with summarily in the District Court or sent forward for sentence and that in these cases (paragraph (b)) applications for bail must go to the High Court.

Section 60 (Amendment of Bail Act 1997)

The Bail Act 1997, provides that bail may be refused to a person charged with a serious offence where it is considered necessary to prevent the commission of a serious offence. Serious offences are defined by reference to the Schedule in the Act. This section provides for the offences being created by the Act to be considered serious offences for bail purposes.

PART 7 (Sections 61 - 67)

Communications Data

This Part provides for the retention of communications data by communications service providers for the purposes of the prevention, detection, investigation or prosecution of crime (including terrorist offences) or the safeguarding of the security of the State. It also introduces safeguards against misuse of the retained data by extending the duties of the designated judge and complaints referee under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 to the data retention provisions of this Part.

Section 61 (Interpretation of this Part)

Section 61 defines terms for the purposes of Part 7. Any word or expression used but not defined in this Part and is defined in Directive 2002/58/EC of the European Parliament and the Council of 12 July 2002 has the same meaning in this Part as in the Directive. That Directive is concerned with the processing of personal data and protection of privacy in the electronic communications sector.

Section 62 (Application of this Part)

Section 62 establishes the parameters of the communications data provisions. Part 7 applies only to telephony data and it is made clear that it does not apply to the content of communications.

Section 63 (Retention of traffic and location data relating to communications by phone).

Directions issued in 2002 under section 110(1) of the Postal and Telecommunications Services Act 1983 by the Minister for Public Enterprise to telecommunications service providers obliged those providers to retain data for not less than 3 years. This was to enable the providers to comply with any request by the Garda Síochána under section 98(2B) of the 1983 Act to make a disclosure under section 98(2A) of that Act. Section 63 places on a full statutory basis the power of the Garda Commissioner to request service providers to retain data for a period of 3 years for the purposes of (1) the prevention, detection, investigation or prosecution of crime, including terrorist crime or (2) the safeguarding of the security of the State. Any service provider receiving the request is required to retain data for 3 years for the above purposes.

Section 64 (Access to data retained for law enforcement and security purposes).

Where a service provider has received a request under section 63, a member of the Garda Síochána not below the rank of chief superintendent or a member of the Permanent Defence Force not below the rank of colonel may request, under section 64, the provider to disclose specified data for which access is required. In the case of the Garda Síochána, the request must be for the purposes of the prevention, investigation, detection or prosecution of crime, including terrorist crime or the safeguarding of the security of the State. In the case of a request from the Permanent Defence Force, the request must be for the safeguarding of the security of the State. The disclosure request must be made in writing but in cases of exceptional urgency a request may be made orally and confirmed in writing within 24 hours. The data can only be disclosed to the senior member of the Garda Síochána or senior officer of the Permanent Defence Force who made the disclosure request.

A service provider has a duty of complying with a disclosure request.

Section 65 (Complaints procedure)

Section 65 extends the complaints procedure in the Interception of Postal Packets and Telecommunications (Regulation) Act 1993 to the data retention provisions in this Part. The Complaints Referee who holds office under the 1993 Act will have similar functions under this Part. A person who believes that data that relates to him or her that are in the possession of a service provider have been accessed following a disclosure request may apply to the Referee to investigate the matter. If an application is neither frivolous nor vexatious, the Referee will investigate whether a disclosure request has been made and, if so, whether the provisions of section 64 have been contravened. If the Referee concludes that there has been a contravention of section 64 he or she will notify the applicant in writing and make a report of his or her findings to the Taoiseach. The Referee may also order the destruction of the data and/or make a recommendation for the payment of compensation to the applicant. Where the Referee concludes that no contravention of section 64 has taken place, he or she will notify the applicant in writing to that effect.

For the purpose of an investigation into whether a disclosure request has been made and, if so, whether the provisions of section 64 have been complied with, the Referee is entitled to access and inspect all relevant official documents. Also any person who was concerned in or has information relating to a relevant disclosure request is obliged to give such information to the Referee if requested to do so by the Referee.

Section 66 (Amendment of section 8 of Act of 1993).

Under section 8 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 the President of the High Court, following consultations with the Minister for Justice, Equality and Law Reform, invites a judge of the High Court to undertake the duties specified under that section and if the judge accepts the invitation, the Government designates him or her for the purposes of the 1993 Act. Section 66 amends section 8 of the 1993 Act by extending the duties of the designated judge to include those specified in section 67 of this Act. If the judge accepts the invitation to undertake the duties specified under both the 1993 Act and this Act, the Government will designate him or her for the purposes of both Acts.

The designation will not affect the functions of the Data Protection Commissioner under section 10 of the Data Protection Act 1988 under which the Commissioner has the power to investigate, or cause to be investigated, whether any of the provisions of the 1988 Act have been, are being, or are likely to be contravened.

Section 67 (Duties of designated judge in relation to this Part)

Section 67 sets out the additional duties of the designated judge under Part 7 of this Act. He or she will have the duty of keeping the provisions of Part 7 under review, of ascertaining whether the Garda Síochána and the Permanent Defence Force are complying with its provisions and of including in his or her report to the Taoiseach such matters relating to Part 7 that the judge considers appropriate. In carrying out his or her duties under this section, the designated judge has the power to investigate any case in which a disclosure request was made and for that purpose is entitled to access and inspect any document relating to the request. Any person who has information relevant to a disclosure request is required to make that information available, on request, to the judge.

The designated judge may communicate with the Taoiseach or the Minister for Justice, Equality and Law Reform about disclosure requests. The judge may also communicate with the Data Protection Commissioner in connection with the Commissioner's functions under the Data Protection Acts. Reports by the judge to the Taoiseach on such matters as the judge considers appropriate relating to the general operation of the 1993 Act and to Part 7 of this Act are made at intervals of not more than 12 months and such reports are laid by the Taoiseach before each House of the Oireachtas with, if necessary, a statement as to whether any matter has been excluded from them. Following consultations with the designated judge, the Taoiseach may make such an exclusion if the Taoiseach considers that publication of such matter would be prejudicial to the prevention or detection of crime or to the security of the State.

PART 8 (Sections 68 - 83)

European Arrest Warrant

Introduction

Part 8 amends the European Arrest Warrant Act 2003. That Act gave effect to the EU Framework Decision on the European arrest warrant and the surrender procedures between Member States.

Section 68 (Application of this Part)

Section 68 defines the scope of application of this Part of the Act The amendments effected by this Part will apply to European arrest warrants that are endorsed under section 13, or produced under section 14(7), of the EAW Act, following enactment of this Act.

Section 69 (Issuing state presumed to comply with Framework Decision)

This section inserts a new section 4A in the European Arrest Warrant Act 2003. Its purpose is to provide for a general presumption that the issuing state will comply with the requirements of the Framework Decision on the European Arrest Warrant, unless the contrary is shown.

Section 70 (Corresponding offences)

This section substitutes section 5 of the European Arrest Warrant Act 2003. It provides a specified point in time by reference to which correspondence of offences (under Irish law and the law of the issuing state) is to be established, i.e. it provides that “correspondence” is to be established by reference to the position on the date of issue of the EAW.

Section 71 (Obligation to surrender)

This section substitutes section 10 of the European Arrest Warrant Act 2003. It outlines who may be subject to surrender under a European arrest warrant, i.e. a person against whom the issuing state intends to bring proceedings or is the subject of proceedings or a person who has been convicted but not yet sentenced or a person on whom a sentence of imprisonment or detention has been imposed (in respect of an offence to which the European arrest warrant relates).

Section 72 (European arrest warrant)

This section amends section 11 of the European Arrest Warrant (EAW) Act 2003. Section 72(a) substitutes subsection (1) and inserts subsection (1A) in section 11 of the EAW Act.

Subsection (1) deals with the form of the EAW and provides that it shall, in so far as practicable, be in the form set out in the Annex to the Framework Decision. As a result, an EAW that does not follow the form in the Annex in every detail may still be accepted.

Subsection (1A) deals with content and sets out the information to be provided in the EAW. It identifies the matters about which details must be provided while also providing that details about e-mail address, etc need only be provided where they are available.

Section 72(b) adds a new subsection (2A) to section 11 of the EAW Act and provides that where it is not practicable to supply in the EAW any information required by subsection (1A), such information may be supplied in a separate document.

Section 72(c) deletes subsection (3) of section 11 of the EAW Act (section 79 of this Act now deals with this issue).

Section 73 (Amendment of section 12 of the Act of 2003)

In subsections (2), (5), (6) and (8)(b) of section 12 of the EAW Act, the words “or issuing state” are being added after “judicial authority”. This will allow the “issuing judicial authority” or other relevant authority in the “issuing state” to supply any undertakings required.

Section 73(b) inserts a new subsection (3A) in section 12 of the EAW Act; it provides that any undertakings required under the EAW Act may be set out in the arrest warrant or provided in a separate document.

Section 73(c) and (d) substitute subsections (4) and (5) of section 12 of the EAW Act and paragraph (g) adds a new paragraph (c) to subsection (8) of section 12. These provisions clarify that European arrest warrants, any undertakings that are required under the EAW Act and, where appropriate, translations thereof, may be transmitted on or on behalf of the issuing judicial authority to the Central Authority in the State using a facsimile machine. It also provides that where the Minister has made the appropriate Regulations there must be compliance with such Regulations.

Section 73(h) substitutes subsection (11) of section 12 of the EAW Act and clarifies that the term “European arrest warrant” includes any document received not only under section 11(1A) but also received separately in accordance with the new subsection (2A) in section 11.

Section 74 (Amendment of section 14 of the Act of 2003)

Section 74(a) substitutes subsection (6) of section 14 of the EAW Act 2003 and addresses the issue of adding “issuing judicial authority or issuing state” on the same basis as has been done in section 12 of the EAW Act.

Section 74(b) substitutes subsection (7) of section 14 of the EAW Act 2003. This is a technical amendment, following from an amendment to section 12 of the EAW Act. It clarifies that faxed copies received under section 12 are also acceptable in cases where the person has been arrested (on grounds of urgency), on foot of a Schengen “alert”.

Section 74(c) amends subsection (10) of section 14 of the EAW Act 2003. The subsection is being re-organised and a revised definition of “Schengen alert” is inserted.

Section 75 (Amendment of section 15 of the Act of 2003)

Section 75(a) substitutes subsections (1) and (2) of section 15 of the EAW Act 2003. These deal with cases where the person consents to being surrendered. This amendment updates the matters about which the High Court is to be satisfied before it makes an order for surrender. In particular, it updates the position in relation to the issues covered by the new section 21A and the revised sections 22, 23 and 24 (see sections 79, 80, 81 and 82 of this Act).

Section 75(b) substitutes subsection (3) of section 15 of the EAW Act 2003 and also concerns cases where the person consents to being surrendered. In such cases, the High Court makes a surrender order but subsection (3) provides that the execution of the surrender order must be delayed for 10 days; however, surrender on a date prior to the end of the 10 day period will now be possible but only where the person requests it and the Court agrees. The amendment introduced by section 75(c) is consequential on the revised subsection (3).

Section 75(d) substitutes subsection (7) of section 15 of the EAW Act 2003. The content of the subsection remains unchanged except for the deletion of the words “Subject to subsection (8)” at the start of subsection (7).

Section 76 (Date of hearing in relation to European arrest warrant)

This section amends section 16 of the EAW Act by substituting subsections (1), (2) and (3), inserting a new subsection (2A), and amending subsection (5)(a) as a consequence of the amendment to subsection (3).

Section 76(a) and (b) substitute subsections (1) and (2) and provides that the High Court may, if satisfied as to certain matters, make an order on such date as is fixed by section 13 or 14 for the hearing of the matter, or on such later date as it considers appropriate, that the person be surrendered. These amendments also update the position in relation to the issues about which the High Court must be satisfied, as covered by the new section 21A and the revised sections 22, 23 and 24 (see sections 79, 80, 81 and 82 of this Act).

Section 76(c) inserts a new subsection (2A) — this is consequential to the amendment of subsections (1) and (2). It clarifies that the High Court may continue to remand a person (whether on bail or in custody) until the surrender hearing is completed.

Section 76(d) substitutes subsection (3). It provides that a surrender order will not take effect until 15 days after its making, but also allows for the possibility of the person asking the court to fix an earlier date for surrender. Section 76(e) amends subsection (5)(a) as a consequence of the amendment to subsection (3).

Section 76(f) substitutes subsection (7). It provides that a person who is not surrendered (in line with subsection (5)) must be released from custody at the end of the specified 10 days period unless any proceedings under Article 40.4.2 of the Constitution are pending.

Section 76(g) inserts some textual changes. An updated text of subsection (9) is provided which takes account of the various alterations.

Section 77 (Amendment of section 18 of Act of 2003)

This section inserts a new subsection (2A) in section 18 of the EAW Act.

Section 18 provides for situations where the court (after having made the surrender order) may agree to defer the surrender, for humanitarian or other reasons. Those other reasons may include cases where the person is awaiting trial on a separate charge in Ireland. Normally, a person in respect of whom a surrender order is made is remanded in custody pending surrender. However, if there is a delay in bringing the person to trial it may be inappropriate to hold the person in custody for a prolonged period pending trial. Under subsection (2A) the court is given discretion to remand the person on bail or in custody, pending completion of the Irish proceedings.

Section 78 (Amendment of section 20 of Act of 2003)

This section amends subsections (1) and (2) of section 20 of the EAW Act 2003.

Section 20 provides that the High Court or the Central Authority may request additional information or documentation. It is now being provided that the “issuing judicial authority” or the “issuing state” may supply the additional information.

Section 79 (Refusal to surrender where no decision to prosecute)

This section inserts section 21A in the EAW Act 2003. It deals with the question of ensuring persons are not surrendered for purposes of investigation. It provides that the High Court shall refuse to make a surrender order if it is satisfied that, in the case of a person who has not yet been convicted, a decision has not been made to charge the person with, and try the person for, the offence concerned. Subsection (2) provides a presumption that the issuing state is presumed to have made a decision to charge the person with, and try him/her for the offence concerned, unless the contrary is proved.

Section 80 (Rule of specialty)

This section substitutes section 22 in the EAW Act 2003 which deals with the rule of specialty (i.e. that rule provides that the person may be proceeded against in the issuing state only for the offences for which he/she was surrendered).

Subsection (1) provides that the specialty rule will not operate so as to prevent the conviction, sentencing and detention in the issuing state of persons surrendered by Ireland in respect of an alternative (but lesser) offence within the same group of offences, i.e. the prohibition on proceedings for other offences — the normal effect of the specialty rule — does not go so far as to prevent a conviction in the issuing state for an alternative but lesser offence, where that offence arises from the same facts or circumstances as gave rise to the charge for which the person was surrendered.

Subsection (2) provides that (upon the matter being raised before it) the High Court shall refuse to make an order for surrender where it is satisfied that the law of the issuing state does not provide for specialty and it has reasonable grounds for believing that the person will be proceeded against etc for offences other than the offence specified in the European arrest warrant.

Subsection (3) contains a presumption that there is compliance by the issuing Member State with the terms of the Framework Decision, in this case that it will respect the provisions on specialty; unless the contrary is proved.

Subsections (4), (5) and (6) contain exceptions to the general rule on specialty, i.e. they indicate circumstances where surrender shall not be refused.

Under subsection (7) it will be necessary to obtain the consent of the High Court where the issuing state proposes to depart from the rule of specialty. Subsection (8) provides that the consent to be given under subsection (7) shall be withheld where surrender would be refused on the grounds in Part 3 of the EAW Act or the Framework Decision.

Section 81 (Surrender of person by issuing state to other Member State)

This section substitutes section 23 in the European Arrest Warrant Act 2003.

Section 23 of the EAW Act deals with the onward surrender of persons by the issuing state to another Member State. The position under this section is that a person must not be surrendered to another Member State without the first executing state consenting to that onward surrender.

Subsection (1) of Section 23 provides a definition of offence in respect of which a person may be subject to onward surrender to another Member State. It provides that an offence for which the person may be surrendered must be an offence that was committed before the person's surrender to the issuing state (pursuant to the original EAW).

Subsection (2) provides that the High Court shall refuse surrender where the law of the issuing state does not provide that a person surrendered to it shall not be surrendered to another Member State for an offence (as defined in subsection (1)) and it has reasonable grounds for believing that the person will be surrendered to another Member State.

Subsection (3) contains a presumption that the issuing Member State is in compliance with the terms of the Framework Decision in relation to the provisions on onward surrender; unless the contrary is proved.

Subsection (4) sets out the circumstances where surrender shall not be refused. Subsection (5) provides that the High Court may consent to onward surrender where the issuing state so requests. Subsection (6) provides that the consent to be given under subsection (5) shall be withheld where surrender would be refused on the grounds in Part 3 of the EAW Act or the Framework Decision.

Section 82 (Extradition of person by issuing state to third state)

This section substitutes section 24 of the EAW Act. It deals with the extradition of persons by the issuing state to a third, i.e. non-EU state. Subsection (1) provides that the High Court shall refuse to order the surrender under the EAW where the law of the issuing state in effect does not require the prior consent of the High Court and the Minister before onward extradition is granted and it has reasonable grounds for believing that the person will be extradited to a third state without such consent being obtained.

Subsection (2) contains a presumption that the issuing Member State is in compliance with the terms of the Framework Decision in respect the provisions on onward extradition. This presumption will apply unless the contrary is proved.

Subsections (3) and (4) are concerned with the giving of consent by the High Court where the issuing state has requested such consent for the onward extradition of the person in question.

Section 83 (Proceedings in the State)

This section substitutes section 42 of the EAW Act.

Section 42 sets out one of the grounds for refusal to surrender a wanted person. It provides that a person shall not be surrendered while the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring a prosecution for an offence or where proceedings have been bought in the State in respect of the offence set out in the EAW.

Schedule 1 contains the European Union Council Framework Decision on Combating Terrorism, in Irish and English.

Schedule 2 contains the specified offences for the purpose of definitions of “terrorist activity” and “terrorist-linked activity”.

Schedule 3 contains the text of the International Convention against the Taking of Hostages.

Schedule 4 contains the text of the Convention on the Prevention of Crimes against Internationally Protected Persons, including Diplomatic Agents.

Schedule 5 contains the text of the International Convention for the Suppression of Terrorist Bombings.

Schedule 6 contains the specified offences for the purposes of Offences against Internationally Protected Persons in section 11.

Schedule 7 contains the text of the International Convention for the Suppression of the Financing of Terrorism.

An Roinn Dlí agus Cirt, Comhionannais agus Athchóirithe Dlí Márta, 2005.

Criminal Justice (Terrorist Offences) Act 2005

Table of Provisions (7)

Statutory Text (7 Articles)

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