S.I. No. 242/2006 - Rules of the Superior Courts (Proceeds of Crime and Financing of Terrorism) 2006

1. In Part I (comprising rules 1 to 10 inclusive) of this Order:-

“the Principal Act” means the

Proceeds of Crime Act 1996

;

“the Act of 2005” means the

Proceeds of Crime (Amendment) Act 2005

;

unless the context otherwise requires, words and phrases have the same meaning as in the Principal Act.

Orders under section 2 of the Principal Act

2.(1) Subject to sub-rule (2), an application by a member, an authorised officer or the Bureau for an order under section 2(1) of the Principal Act shall be made by originating motion

ex parte

. The said originating motion shall be entitled

“The High Court

Proceeds of Crime

In the Matter of the

Proceeds of Crime Act 1996

and in the Matter of an Application affecting property alleged to be in the possession or control of [C.D.]

On the Application of [A.B.]”

and shall, in the body thereof, specify the relief sought under section 2(1) of the Principal Act.

(2) An application under section 2(1) of the Principal Act shall be grounded upon an affidavit or affidavits sworn by or on behalf of the applicant.

(3) Notwithstanding sub-rule (2), the Court may, in cases of urgency hear an application under section 2(1) of the Principal Act on oral evidence. Where any oral evidence is heard by the Court in the course of any such application

ex parte

, a note of such evidence shall be prepared by the applicant or the applicant's solicitor and approved by the Court and shall unless otherwise directed by the Court, be served upon the respondent together with a copy of the order made, if any.

(4) On the hearing of any application for an order under section 2(1 of the Principal Act, the Court may give such directions as seem appropriate

(a) as to the service of any document by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(b) as to the service of any document outside the jurisdiction in accordance with Order 11.

2. Nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Proceeds of Crime Acts 1996 and 2005 under the Criminal Assets Bureau Acts 1996 and 2005, under the

Criminal Justice Act 1994

(as amended) or under the

Criminal Justice (Terrorist Offences) Act 2005

initiated before the commencement of these Rules. Any such proceedings shall, save where the court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.

3. These Rules shall come into operation on the 5

th

day of June 2006.

4. These Rules shall be construed together with the Rules of the Superior Courts 1986 to 2006 and may be cited as the Rules of the Superior Courts (Proceeds of Crime and Financing of Terrorism) 2006.

EXPLANATORY NOTE

(This does not form part of the instrument and does not purport to be a legal interpretation)

These rules regulate the procedure in proceedings under the Proceeds of Crime Acts 1996 and 2005, the Criminal Assets Bureau Acts 1996 and 2005 the

Criminal Justice Act 1994

(as amended) and the

Criminal Justice (Terrorist Offences) Act 2005

, and make provision for service out of the jurisdiction in such proceedings.

5. Any application

(a) under section 3(3) of the Principal Act to discharge or vary an order made under section 3(1) of the Principal Act,

(b) under section 3(3A) of the Principal Act (inserted by the Act of 2005) to vary an order made under section 3(1) of the Principal Act, or

(c) under section 3(4) of the Principal Act to discharge an order made under section 3(1) of the Principal Act

shall be made by motion on notice, and may be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Save in the case of an application referred to in paragraph (b) or (c) of this rule where the court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts, notice of such application shall be given by delivering copies of the notice of motion and of any grounding affidavit and any exhibits thereto to the person or (as the case may be) persons referred to in section 3(6) of the Principal Act not later than four clear days before the return date for the motion.

Orders under section 4 of the Principal Act

6.(1) An application by an applicant for an order under section 4(1) of the Principal Act shall be made by originating notice of motion grounded on an affidavit or affidavits sworn by or on behalf of the applicant. The originating motion shall be entitled

“The High Court

Proceeds of Crime

In the Matter of section 4(1) of the

Proceeds of Crime Act 1996

Between

AB

Applicant

and

CD

Respondent”.

(2) Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts, notice of the application shall be given by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the respondent, and to any other person or persons as the Court may under section 4(3) of the Principal Act direct, not later than four clear days before the return date for the originating notice of motion.

(3) Save as otherwise directed by the Court, the respondent to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and grounding affidavit.

(4) Save as otherwise directed by the Court, the applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating motion, the Court may, at such hearing

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any respondent and any other person;

(c) direct that the application be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and the conduct of the proceedings.

Orders under section 16B(2) of the Principal Act

7.(1) An application by an applicant for an order under section 16B(2) of the Principal Act (inserted by the Act of 2005) shall be made by originating notice of motion, grounded on an affidavit or affidavits sworn by or on behalf of the applicant, and shall be entitled

“The High Court

Proceeds of Crime

In the Matter of section 16B(2) of the

Proceeds of Crime Act 1996

Between

AB

Plaintiff / Applicant

and

CD

Defendant”.

(2) Notice of the application shall be given, unless the Court otherwise directs, by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the defendant not later than four clear days before the return date of the originating notice of motion.

(3) Save where otherwise directed by the Court, any defendant to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and grounding affidavit.

(4) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any defendant and any other person;

(c) direct that the application be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and the conduct of the proceedings.

Other relief under the Proceeds of Crime Acts 1996 and 2005

8.(1) Save where the Court otherwise directs, any application

(a) for any confirmation by the Court of the discharge or variation of any order made under section 2(1) of the Principal Act or order made under section 3(1) of the Principal Act relating to specified property, by reason of an order referred to in section 3(7) of the Principal Act;

(b) for an order under section 4A(1) of the Principal Act (inserted by the Act of 2005);

(c) for any relief under section 5 of the Principal Act;

(d) for any relief under section 6 of the Principal Act;

(e) for the appointment of a receiver under section 7 of the Principal Act;

(f) for an order under section 9(1) of the Principal Act directing a respondent to file in the Central Office of the High Court an affidavit referred to in section 9(1) of the Principal Act, or for an order under section 16B(6)(a) of the Principal Act (inserted by the Act of 2005) directing a defendant to file in the Central Office of the High Court an affidavit referred to in section 16B(6)(a) of the Principal Act (inserted by the Act of 2005); or

(g) by a member of the Garda Síochána or an officer of customs and excise for the Court's directions under sub-section (2) of section 15 of the Principal Act

shall be made by notice of motion in the proceedings relative to the order made under section 2(1) of the Principal Act concerned or, as the case may be, the order made under section 3(1) of the Principal Act concerned grounded upon an affidavit sworn by or on behalf of the moving party.

(2) Save where the Court otherwise directs, the moving party shall give notice of such application by delivering copies of the notice of motion and grounding affidavit and any exhibits thereto to the applicant or the respondent (or, as the case may be, the defendant), and to any other person to whom notice is required to be given, not later than four clear days before the return date for the motion.

(3) Where the Court, having appointed a receiver under section 7(1 of the Principal Act, directs the receiver to account to any person in respect of the receivership, the account shall, subject to any modifications which may be necessary or as the Court may direct, be in the Form No. 20 in Appendix G and the affidavit verifying the account shall, subject to any modifications which may be necessary, be in the Form No. 24 in Appendix G.

9.(1) An application for compensation under section 16 of the Principal Act shall be made by originating notice of motion in which the person seeking compensation shall be the plaintiff and the Minister and the person on whose application the order under section 2(1) of the Principal Act was made, or the order under section 3(1) of the Principal Act was made, shall be defendants. The originating notice of motion shall be grounded on an affidavit or affidavits sworn by or on behalf of the plaintiff and shall be entitled

“The High Court

Proceeds of Crime

In the Matter of

section 16

of the

Proceeds of Crime Act 1996

Between

AB

Plaintiff

and

CD

Defendants”.

(2) Notice of the application shall be given, unless the Court otherwise directs, by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the defendant not later than four clear days before the return date of the originating notice of motion.

(3) Save where otherwise directed by the Court, any defendant to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and of any grounding affidavit.

(4) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing

(a) make such orders or give such directions as seem appropriate for the delivery of affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any person;

(c) direct that the application be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and the conduct of the proceedings.

Notices

10.(1) A notice required under sub-section (1), (2) or (3) of section 10 of the Principal Act to be given by the Registrar of the Court to the Registrar of Titles shall be given by the transmission by the Registrar of the Court to the Registrar of Titles of an attested copy of the relevant order of the Court.

(2) A notice required under sub-section (4), (5) or (6) of section 10 of the Principal Act to be given by the Registrar of the Court to the Registrar of Deeds shall be given by the transmission by the Registrar of the Court to the Registrar of Deeds of an attested copy of the relevant order of the Court.

(3) A notice required under sub-section (7), (8) or (9) of section 10 of the Principal Act to be given by the Registrar of the Court to the Registrar of Companies shall be given by the transmission by the Registrar of the Court to the Registrar of Companies of an attested copy of the relevant order of the Court.

II. Proceedings under the Criminal Assets Bureau Acts 1996 and 2005

11. In Part II (comprising rules 11 to 14 inclusive) of this Order:-

“the Act of 1996” means the

Criminal Assets Bureau Act 1996

;

“the Act of 2005” means the

Proceeds of Crime (Amendment) Act 2005

;

unless the context otherwise requires, words and phrases have the same meaning as in the Act of 1996.

12.(1) An application to the Court by the Chief Bureau Officer for directions referred to in sub-section (7) of section 10 of the Act of 1996 shall be made by motion

ex parte

in the proceedings in which such directions are sought, and shall be grounded upon an affidavit sworn by or on behalf of the Chief Bureau Officer. The Court may, where it considers it just, direct that such application be made on notice to the respondent or defendant in such proceedings.

(2) The Court may, on the application of any party to proceedings referred to in sub-rule (1), if satisfied that there are reasonable grounds in the public interest to do so, vary or discharge directions given under sub-section (7) of section 10 of the Act of 1996.

13.(1) An application by the Chief Bureau Officer or an authorised officer to a judge of the High Court for an order under section 14C(1) of the Act of 1996 (inserted by the Act of 2005) may be made by originating notice of motion grounded upon an affidavit sworn by or on behalf of the moving party. The originating notice of motion shall be entitled

“The High Court

In the Matter of section 14C(1) of the

Criminal Assets Bureau Act 1996

Between

AB

Applicant

and

CD

Respondent”.

(2) Notice of the application shall, unless the Court otherwise directs be given by delivering copies of the originating notice of motion and of any grounding affidavit and any exhibits thereto to each of the trustees of the trust not later than four clear days before the return date of the originating notice of motion. The Court may direct that notice of such application be given to such other person or persons as it considers just.

(3) Save where otherwise directed by the Court, any person to whom notice of such application is required to be given may deliver a replying affidavit within two weeks of the delivery to such person of copies of the said originating notice of motion and grounding affidavit.

(4) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing

(a) make such orders or give such directions as seem appropriate for the further delivery of affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any person;

(c) direct that the application be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and the conduct of the proceedings.

14.(1) An application under section 14C(4) of the Act of 1996 (inserted by the Act of 2005) by a person to whom the order relates or by a member of the Garda Síochána to vary or discharge an order made under section 14C(1) of the Act of 1996 (inserted by the Act of 2005) shall be made by motion on notice.

(2) Unless the Court otherwise directs or permits, an application referred to in this rule shall be grounded upon an affidavit sworn by or on behalf of the moving party. Notice of the motion shall be given by delivering copies of the notice of motion and grounding affidavit and any exhibits thereto to the respondent or (as the case may be) the applicant named in the originating notice of motion, not later than four clear days before the return date for the motion.

III. Proceedings under the

Criminal Justice Act 1994

(as amended)

15. In Part III (comprising rules 15 to 25 inclusive) of this Order

“the Act of 1994” means the

Criminal Justice Act 1994

;

“the Act of 2005” means the

Criminal Justice (Terrorist Offences) Act 2005

;

unless the context otherwise requires, words and phrases in have the same meaning as in the Act of 1994.

Confiscation orders under the Act of 1994 and related applications

16.(1) An application by the Director of Public Prosecutions for the exercise by the Court of the power conferred by sub-section (2) or sub-section (4) of section 13 of the Act of 1994 (as amended by section 27 of the Act of 2005) shall be made by originating motion

ex parte

. The said originating motion shall be entitled

“The High Court

In the Matter of an Application under

section 13

of the

Criminal Justice Act 1994

”.

(2) Such application shall be grounded upon an affidavit or affidavits sworn by or on behalf of the Director of Public Prosecutions.

(3) On the hearing of any such application, the Court may give such directions as seem appropriate

(a) as to the service of copies of the originating motion, affidavit or affidavits and any exhibits thereto on any person appearing to the Court likely to be affected by the making of a confiscation order;

(b) as to the service of copies of those documents by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(c) as to the service of any document outside the jurisdiction in accordance with Order 11.

(4) Where a confiscation order made on an application commenced in accordance with this rule is served upon the defendant, there shall be endorsed upon the copy of the order served upon the defendant a memorandum in the following words or to the following effect: “If at any time after payment of a sum due under the within confiscation order has become enforceable in the manner provided for by section 19(1) of the

Criminal Justice Act 1994

, it is reported to the High Court by the Director of Public Prosecutions that any such sum or any part thereof remains unpaid, the High Court may order that you the defendant be imprisoned for a period not exceeding that set out in the Table to section 19 of the said Act.”

17.(1) Where a confiscation order has been made, any application to the Court

(a) by the defendant or the Director of Public Prosecutions to substitute an amount under section 16 of the Act of 1994;

(b) by the defendant or the Director of Public Prosecutions to make a fresh determination of value under section 17 of the Act of 1994 (as amended by section 28 of the Act of 2005) and to vary an amount under section 17 of the Act of 1994 (as amended by section 28 of the Act of 2005);

(c) by the Director of Public Prosecutions to substitute an amount under section 18 of the Act of 1994 (as amended by section 29 of the Act of 2005);

(d) by the Director of Public Prosecutions seeking an order that the defendant be imprisoned under section 19(2) of the Act of 1994; or

(e) by the Director of Public Prosecutions under section 20 of the Act of 1994 to exercise the powers conferred by sub-sections (2) to (6) of section 20 of the Act of 1994

shall be made by notice of motion in the proceedings commenced by the originating motion referred to in rule 16.

(2) Such motion shall be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Notice of such application shall be given by delivering copies of the said notice of motion and grounding affidavit and any exhibits thereto to the Director of Public Prosecutions or as the case may be, to the defendant.

(3) Notice of such application shall be given

(a) in the case of an application referred to in paragraph (d) of sub-rule (1), not later than 21 days before the return date for the motion;

(b) in the case of any other application referred to in sub-rule (1) not later than four clear days before the return date for the motion.

(4) In the case of an application referred to in paragraph (d) of sub-rule (1), the defendant may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the notice of motion, grounding affidavit and any exhibits thereto and the Director of Public Prosecutions may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the notice of motion referred to in this rule, the Court may, at such hearing, make such orders or give such directions as seem appropriate

(a) for the delivery of further affidavits and for the determination of the application;

(b) in the case of an application referred to in paragraph (b) or (e of sub-rule (1), as to the service of copies of the notice of motion, affidavit or affidavits and any exhibits thereto on any person who it appears to the Court may hold any interest in the realisable property to which the application relates.

Restraint orders under section 24 of the Act of 1994 and related orders

18.(1) An application by the Director of Public Prosecutions for a restraint order under section 24 of the Act of 1994 shall be made by originating notice of motion

ex parte

. The said originating motion shall be entitled

“The High Court

In the Matter of an Application under

section 24

of the

Criminal Justice Act 1994

”.

(2) Such application shall be grounded upon an affidavit or affidavits sworn by or on behalf of the Director of Public Prosecutions.

(3) On the hearing of any such application, the Court may give such directions as seem appropriate

(a) as to the service of copies of the originating motion, affidavit or affidavits and any exhibits thereto on any person appearing to the Court likely to be affected by the making of a restraint order;

(b) as to the service of copies of those documents by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(c) as to the service of any document outside the jurisdiction in accordance with Order 11.

19. Where a restraint order is made, the Court shall give such directions as seem appropriate, which shall be recited in the order, as to service of copies of the order upon, or the giving of notice of the making and contents of the order to, any person appearing to the Court likely to be affected by the making of the restraint order.

20. Any application to the Court

(a) under section 24(5) of the Act of 1994 by any person affected by a restraint order to discharge or vary that restraint order in relation to any property; or

(b) under section 24(7) of the Act of 1994 to appoint a receiver

shall be made by motion on notice, and shall be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Notice of such application shall be given by delivering copies of the notice of motion and of any grounding affidavit and any exhibits thereto to the Director of Public Prosecutions or (as the case may be) the person or persons affected by the restraint order not later than four clear days before the return date for the motion.

21.(1) A notice required under sub-section (1), (2) or (3) of section 25 of the Act of 1994 to be given by the Registrar of the Court to the Registrar of Titles shall be given by the transmission by the Registrar of the Court to the Registrar of Titles of an attested copy of the relevant order of the Court.

(2) A notice required under sub-section (4), (5) or (6) of section 25 of the Act of 1994 to be given by the Registrar of the Court to the Registrar of Deeds shall be given by the transmission by the Registrar of the Court to the Registrar of Deeds of an attested copy of the relevant order of the Court.

(3) A notice required under sub-section (7), (8) or (9) of section 25 of the Act of 1994 to be given by the Registrar of the Court to the Registrar of Companies shall be given by the transmission by the Registrar of the Court to the Registrar of Companies of an attested copy of the relevant order of the Court.

Receivers

22. Where the Court, having appointed a receiver under section 20(2 or section 24(7) of the Act of 1994, directs the receiver to account to any person in respect of the receivership, the account shall, subject to any modifications which may be necessary or as the Court may direct, be in the Form No. 20 in Appendix G and the affidavit verifying the account shall subject to any modifications which may be necessary, be in the Form No. 24 in Appendix G.

Appeals under section 40 of the Act of 1994

23. The provisions of Order 61 shall apply to any appeal under section 40 of the Act of 1994.

Confiscation co-operation orders under section 46 of the Act of 1994

Forfeiture co-operation orders under section 47 of the Act of 1994

24.(1) An application by or on behalf of a designated country for a confiscation co-operation order under section 46 of the Act of 1994 (as amended by section 33 of the Act of 2005) or for a forfeiture co-operation order under section 47 of the Act of 1994 (as amended by section 34 of the Act of 2005) shall be made by originating notice of motion grounded on an affidavit or affidavits sworn on behalf of the government of the designated country concerned, one of which affidavits shall exhibit a document evidencing the consent of the Minister to the making of the application.

(2) The originating notice of motion shall be entitled

“The High Court

In the Matter of an Application under section 46 (

or, as the case may be section 47

) of the

Criminal Justice Act 1994

Between

A

Applicant

and

BC

Respondent”.

(3) Notice of the application shall be given by delivering copies of the said originating notice of motion and grounding affidavit and any exhibits thereto to the respondent not later than 21 days before the return date of such originating notice of motion.

(4) Save as otherwise directed by the Court, any respondent to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and grounding affidavit.

(5) Save as otherwise directed by the Court, the applicant may deliver a further affidavit within seven days of the delivery of any replying affidavit.

(6) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing

(a) direct service of notice of any application under section 47 of the Act of 1994 on any person who appears to the Court to claim to be the owner of the thing in question or otherwise interested in it;

(b) make such orders or give such directions as seem appropriate for the delivery of further affidavits (including by any person referred to in paragraph (a)) and for the determination of the application;

(c) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any respondent and any other person.

(7) The provisions of this Order governing proceedings consequent upon the making of a confiscation order shall apply to proceedings consequent upon the making of a confiscation co-operation order, with such modifications as may be necessary.

(8) The provisions of this Order governing proceedings for or consequent upon the making of a restraint order shall apply to proceedings for or consequent upon the making of a restraint order in the circumstances referred to in the Schedule to the

Criminal Justice Act 1994

(Section 46(6) Regulations 1996, with such modifications as may be necessary.

Compensation

25.(1) An application under section 17(4), section 65(1), section 66(3) or section 67(3) of the Act of 1994 by a person who held property which was realisable property shall be made by originating notice of motion in which the person seeking compensation shall be the plaintiff and the Minister for Finance and the Director of Public Prosecutions shall be defendants. The originating notice of motion shall be grounded on an affidavit or affidavits sworn by or on behalf of the plaintiff, and shall be entitled

“The High Court

In the Matter of section 17(4) (

or, as the case may be, section 65(1), section 66(3) or section 67(3)

) of the

Criminal Justice Act 1994

Between

AB

Plaintiff

and

CD

Defendants”.

(2) Notice of the application shall be given, unless the Court otherwise directs, by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to each defendant not later than 21 days before the return date of the originating notice of motion.

(3) Save where otherwise directed by the Court, any defendant to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and of any grounding affidavit.

(4) The applicant may deliver a further affidavit within seven days of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing

(a) make such orders or give such directions as seem appropriate for the delivery of affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any person;

(c) direct that the application be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and the conduct of the proceedings.

IV. Proceedings under the

Criminal Justice (Terrorist Offences Act 2005

26. In Part IV (comprising rules 26 to 32 inclusive) of this Order

“the Act of 2005” means the

Criminal Justice (Terrorist Offences) Act 2005

;

unless the context otherwise requires, words and phrases have the same meaning as in the Act of 2005.

Orders under section 14 of the Act of 2005 and related applications

27.(1) An application by a member of the Garda Síochána for an order under section 14(1) of the Act of 2005 shall be made by originating motion

ex parte

. The said originating motion shall be entitled

“The High Court

In the Matter of the

Criminal Justice (Terrorist Offences) Act 2005

and in the Matter of an Application affecting funds alleged to be in the possession or control of [C.D.]

On the Application of [A.B.]”

and shall, in the body thereof, specify the relief sought under section 14 of the Act of 2005.

(2) An application under section 14(1) of the Act of 2005 shall be grounded upon an affidavit or affidavits sworn by or on behalf of the applicant.

(3) Notwithstanding sub-rule (2), the Court may, in cases of urgency hear an application under section 14(1) of the Act of 2005 on oral evidence. Where any oral evidence is heard by the Court in the course of any such application

ex parte

, a note of such evidence shall be prepared by the applicant or the applicant's solicitor and approved by the Court and shall unless otherwise directed by the Court, be served upon the respondent together with a copy of the order made, if any.

(4) On the hearing of any application for an order under section 14(1) of the Act of 2005, the Court may give such directions as seem appropriate

(a) as to the service of any document by substituted or other service or for the substitution for the service of notice by advertisement or otherwise in accordance with Order 10;

(b) as to the service of any document outside the jurisdiction in accordance with Order 11.

28. Any application

(a) under section 14(3) of the Act of 2005 by the respondent or any other person claiming ownership of the funds specified in an order made under section 14(1) of the Act of 2005 to discharge or vary an order made under section 14(1) of the Act of 2005,

(b) under section 14(4) of the Act of 2005 by a member of the Garda Síochána or any other person to vary an order made under section 14(1) of the Act of 2005,

(c) under section 14(6) of the Act of 2005 by a member of the Garda Síochána to discharge an order made under section 14(1) of the Act of 2005, or

(d) under section 17(1) of the Act of 2005 by a member of the Garda Síochána for an order or orders to enable the order made under section 14(1) of the Act of 2005 to have full effect

shall be made by notice of motion in the proceedings commenced by the originating motion referred to in rule 27, and may be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the whereabouts of the respondent or of any other person who appears to be affected by the making of the order under section 14(1), notice of such application shall be given by delivering copies of the said notice of motion and of any grounding affidavit and any exhibits thereto to

(a) the person or persons referred to in section 14(9) of the Act of 2005, where the application is under section 14(3) of the Act of 2005,

(b) the person or persons referred to in section 14(10) of the Act of 2005, where the application is under section 14(4) or section 14(6) of the Act of 2005, or

(c) the person or persons referred to in section 17(2) of the Act of 2005, where the application is under section 17(1) of the Act of 2005,

not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

Orders under section 15 of the Act of 2005 and related applications

29.(1) Subject to sub-rule (6), an application for an order under section 15(1) of the Act of 2005 shall be made by originating notice of motion grounded on an affidavit or affidavits sworn by or on behalf of the applicant.

(2) Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts, notice of the application shall be given by delivering copies of the said originating notice of motion and grounding affidavit and any exhibits thereto to the respondent not later than four clear days before the return date of such originating notice of motion.

(3) Save as otherwise directed by the Court, any respondent to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and grounding affidavit.

(4) Save as otherwise directed by the Court, the applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any respondent and any other person, or

(c) direct that the proceedings be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and for the conduct of the proceedings.

(6) Where an order under section 14(1) of the Act of 2005 has been made, an application for an order under section 15(1) of the Act of 2005 affecting any of the funds and the person or persons to which the order made under section 14(1) of the Act of 2005 relates may be made by notice of motion in the proceedings commenced by the originating motion referred to in rule 27, provided that the originating motion shall, in the body thereof have specified the relief sought under section 15(1) of the Act of 2005. In any such case, the provisions of sub-rules (1) to (5) of this rule relating to an originating notice of motion shall apply to that notice of motion.

(7) Any originating notice of motion issued in accordance with this rule shall be entitled

“The High Court

In the Matter of the

Criminal Justice (Terrorist Offences) Act 2005

Between

AB

Applicant

and

CD

Respondent”.

30. Any application

(a) under section 15(5) of the Act of 2005 by the respondent or any other person claiming ownership of the funds specified in an order made under section 15(1) of the Act of 2005 to discharge or vary an order made under section 15(1) of the Act of 2005,

(b) under section 15(6) of the Act of 2005 by a member of the Garda Síochána or any other person to vary an order made under section 15(1) of the Act of 2005,

(c) under section 15(8) of the Act of 2005 by a member of the Garda Síochána to discharge an order made under section 15(1) of the Act of 2005 or

(d) under section 17(1) of the Act of 2005 by a member of the Garda Síochána for an order or orders to enable the order made under section 15(1) of the Act to have full effect

shall be made by motion on notice, and may be grounded upon an affidavit or affidavits sworn by or on behalf of the moving party. Save in the case of an application referred to in paragraph (b), (c) or (d) of this rule where the court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts, notice of such application shall be given by delivering copies of the notice of motion and of any grounding affidavit and any exhibits thereto to

(i) the person or persons referred to in section 15(10) of the Act of 2005, where the application is under section 15(6) or section 15(8) of the Act of 2005,

(ii) the person or persons referred to in section 15(11) of the Act of 2005, where the application is under section 15(5) of the Act of 2005 or

(iii) the person or persons referred to in section 17(2) of the Act of 2005, where the application is under section 17(1) of the Act of 2005,

not later than four clear days (or, in cases of urgency, such lesser period as the Court may allow) before the return date for the motion.

Orders under section 16 of the Act of 2005

31.(1) An application by an applicant for an order under section 16(1) of the Act of 2005 shall be made by originating notice of motion grounded on an affidavit or affidavits sworn by or on behalf of the applicant. The originating notice of motion shall be entitled

“The High Court

In the Matter of

section 16

of the

Criminal Justice (Terrorist Offences) Act 2005

Between

AB

Applicant

and

CD

Respondent”.

(2) Save in cases where the Court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts, notice of the application shall be given by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the respondent, and to any other person or persons as the Court may under section 16(3) of the Act of 2005 direct, not later than four clear days before the return date for the originating notice of motion.

(3) Save as otherwise directed by the Court, the respondent to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and grounding affidavit.

(4) Save as otherwise directed by the Court, the applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating motion, the Court may, at such hearing

(a) make such orders or give such directions as seem appropriate for the delivery of further affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any respondent and any other person;

(c) direct that the application be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and the conduct of the proceedings.

Orders under section 19 of the Act of 2005

32.(1) An application for compensation under section 19 of the Act of 2005 shall be made by originating notice of motion in which the person seeking compensation shall be the plaintiff and the Minister for Finance and the person on whose application the order under section 14(1) of the Act of 2005 was made, or the order under section 15(1) of the Act of 2005 was made, shall be defendants. The originating notice of motion shall be grounded on an affidavit or affidavits sworn by or on behalf of the plaintiff. The originating notice of motion shall be entitled

“The High Court

In the Matter of

section 19

of the

Criminal Justice (Terrorist Offences) Act 2005

Between

AB

Plaintiff

and

CD

Defendants”.

(2) Notice of the application shall, unless the Court otherwise directs be given by delivering copies of the originating notice of motion and grounding affidavit and any exhibits thereto to the defendant not later than four clear days before the return date of the originating notice of motion.

(3) Save where otherwise directed by the Court, any defendant to such originating notice of motion may deliver a replying affidavit within two weeks of the delivery to him or her of copies of the said originating notice of motion and of any grounding affidavit.

(4) The applicant may deliver a further affidavit within two weeks of the delivery of any replying affidavit.

(5) In addition to any other order which may be made on the hearing of the originating notice of motion, the Court may, at such hearing

(a) make such orders or give such directions as seem appropriate for the delivery of affidavits and for the determination of the application;

(b) make such orders or give such directions as seem appropriate as to the means by which notice of the application may be given to any person;

(c) direct that the application be determined by way of plenary hearing, if it considers it appropriate in the circumstances of the case, and make such orders or give such directions as seem appropriate for the delivery of pleadings and the conduct of the proceedings.

V. General

33. A respondent or defendant in any proceedings commenced by originating notice of motion pursuant to this Order, and to whom notice of such motion has been given, shall enter an appearance to such notice of motion in the Form No. 1 in Appendix A, Part II, with such modifications as may be necessary, within eight days after service upon him of the originating notice of motion or notice thereof. Where a respondent is given notice of such motion after the date first fixed for the hearing of the notice of motion, he shall enter an appearance thereto within the time fixed by the Court for that purpose.

34. Save as otherwise directed by the Court, all proceedings commenced by originating notice of motion in accordance with this Order shall be heard and determined upon affidavit.”

S.I. No.242 of 2006

Rules of the Superior Courts (Proceeds of Crime and Financing of Terrorism 2006

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the

Courts of Justice Act 1936

, section 67, and reconstituted pursuant to the provisions of the

Courts of Justice Act 1953

, section 15, by virtue of the powers conferred upon us by the

Courts of Justice Act 1924

, section 36, and the

Courts of Justice Act 1936

, section 68 (as applied by the

Courts (Supplemental Provisions Act 1961

, section 48), and the

Courts (Supplemental Provisions) Act 1961

, section 14, and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Dated this 30

th

day of March, 2006.

John L Murray

Joseph Finnegan

Adrian Hardiman

Richard Johnson

William McKechnie

Tony Hunt

Patrick Groarke

Noel Rubotham

Matthew Feely

I concur in the making of the following Rules of Court.

Dated this 8

th

day of May, 2006.

MICHAEL MCDOWELL

Minister for Justice, Equality and Law Reform

S.I. No.242 of 2006

Rules of the Superior Courts ( Proceeds of Crime and Financing of Terrorism 2006