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knowledge 9 January 2015 |

Commencement of mutual assistance provisions in relation to interception of telecommunications for investigation of criminal offences

Part 3 of the Criminal Justice (Mutual Assistance) Act 2008 (the “2008 Act”), which provides for mutual assistance between Ireland and EU Member States in relation to the interception of telecommunications for criminal investigation purposes, was commenced by way of statutory instrument (S.I. No. 541 of 2014) on 26 November 2014, with effect from 1 December 2014. Part 3 gives effect to Articles 17 to 22 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union 2000.

The commencement of Part 3 of the 2008 Act supplements the Postal and Telecommunications Services Act 1983 (the “1983 Act”) and the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 (the “1993 Act”) which, together, provide the statutory framework for the interception of communications domestically.

Assistance in interception

Section 23 of the 2008 Act deals with requests for assistance in interception by the Irish Minister for Justice to the competent authority in another Member State, while section 24 deals with similar requests from Member States to the Minister. In both cases, the request must relate to a criminal investigation and there must be a lawful order or warrant authorising the interception in the requesting state.

Where the Minister receives such a request, she may authorise the interception where she is satisfied that the request falls within section 24 and that the requirements for a valid request for assistance have been complied with. Where the subject of the interception is in Ireland additional safeguards apply, as follows:  

  • the authorisation may only be granted if the conduct being investigated would constitute a serious offence justifying an authorisation of interception under the 1993 Act; and
  • the Minister may impose any conditions which could apply to authorisations granted under the 1993 Act, e.g. restriction of use of the intercepted messages.

Notifications of Interception

Section 26 permits the Minister to authorise interception by Irish law enforcement authorities in another Member State where no technical assistance is required to carry out the interception. If the Minister is aware that the person whose communications are to be intercepted is in another Member State, the Minister must inform the relevant State prior to commencing interception. In all other cases, the Minister is required to make such a notification immediately on becoming aware of this fact. Section 27 contains similar provisions in relation to notification to the Minister of interceptions in Ireland by other Member States.

Both sections 26 and 27 require that the interception be authorised by the intercepting State and section 27 contains additional safeguards which allow the Minister to prevent interception or require interception to be terminated in certain situations including, amongst others, where an authorisation would not be granted under the 1993 Act in similar circumstances or where the interception relates to a political offence.  

Additional Provisions

Part 3 also amends existing legislation in relation to interception, making it an offence not to comply with a direction under the 1983 Act and providing that any such prosecutions, as well as any appeals or subsequent proceedings, are to be held in camera.

Section 28 applies to purely domestic situations and compels licensed telecoms operators to facilitate the interception of messages where the messages cannot be directly intercepted in the State, but the undertaking can either directly intercept the messages or has interception equipment which enables the interception.  

Conclusion

The commencement of Part 3 of the 2008 Act provides Irish law enforcement authorities with additional tools in investigating crimes, particularly those of a cross-border nature, and provides an essential legal framework for cooperation in the interception of communications throughout the EU.


Contributed by: Sadhbh O’Sullivan

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.