PART 4
FREEZING, CONFISCATION AND FORFEITURE OF PROPERTY
Chapter 2
Freezing of Property
Refusal to make

Refusal to make

46. — (1) Without prejudice to section 3, the High Court may refuse to make a

freezing co-opera- freezing co-operation order only if—
tion order.
(a) the offence to which the external freezing order relates is not an offence to which the relevant international instrument relates,

(b) where the external freezing order was made in a member state, the certificate is not produced, is incomplete or manifestly does not correspond to the external freezing order,

(c) there is an immunity or privilege under the law of the State which makes it impossible to make a freezing co-operation order,

(d) it is immediately clear from the information provided in a certificate that compliance with a request for the transfer of evidence or confiscation of property in relation to the offence in respect of which the external freezing order has been made would infringe the ne bis in idem principle, or

(e) in the case of an external freezing order from a designated state (other than a member state), there is not a reasonable basis for believing—
(i) that there are sufficient grounds for making the order, or
(ii) that the property will be subject to an external confiscation order.
(2) In a case referred to in subsection (1)(b), the High Court may—
(a) specify a deadline for presentation of a certificate or for its completion or correction,
(b) accept an equivalent document, or
(c) if the Court considers that the information provided is sufficient, dispense with the requirement to produce the certificate.



(3) Where—
(a) the High Court refuses to make a freezing co-operation order, or
(b) notwithstanding consultation with the issuing judicial authority concerned, it is not possible to make such an order because—

(i) the evidence or property has disappeared, has been destroyed or cannot be found in the location indicated in the certificate, or
(ii) its location has not been indicated in a sufficiently precise manner,
the Court shall direct the Central Authority to inform the judicial authority accord- ingly by any means capable of producing a written record.

PART 4
FREEZING, CONFISCATION AND FORFEITURE OF PROPERTY
Chapter 3
Confiscation of Property

F30[Refusal to confiscate

51B. (1) On application made in accordance with section 51(1) or 51A(2) and without prejudice to section 3, the High Court shall refuse to make a confiscation co-operation order in respect of an external confiscation order, or shall make an order refusing the execution of an external confiscation order made by or on behalf of a court in a designated state that is a member state, as the case may be, if—



(a) subject to subsection (4), the conduct which resulted in the making of the external confiscation order is not an offence to which the relevant interna- tional instrument relates,

(b) there is immunity or privilege under the law of the State which makes it impossible to make the confiscation co-operation order or execute the external confiscation order, as the case may be,

(c) it is immediately clear from the information provided in a certificate that compliance with the external confiscation order in relation to the offence that resulted in the making of that order would infringe the ne bis in idem principle,

(d) the defendant did not appear in person at the trial resulting in the external confiscation order, unless the certificate from the court in the designated state concerned states that—

(i) he or she was notified of the time when, and place at which, the proceedings were to take place, or he or she was otherwise aware of the scheduled proceedings, and he or she was informed that an external confiscation order could be made even if he or she did not appear,

(ii) he or she was aware of the proceedings concerned and was represented at those proceedings by a lawyer whom he or she has appointed,

(iii) after having been served with the external confiscation order and expressly informed of his or her right to a retrial or an appeal in which he or she would have been able to participate and which could have led to the original decision being reversed, he or she—

(I) expressly stated that he or she did not contest the external confiscation order, or

(II) did not request the retrial or appeal within the time limit for exercising that right,

or
(iv) in a case where he or she was not personally served with the external confiscation order, an undertaking has been given by the designated state concerned that he or she will be personally served with the external confiscation order without delay and will be expressly informed of his or her right to a retrial or an appeal in which he or she will be able to participate and which could lead to a reversal of the order, and of the time limit for exercising that right,

(e) the criminal conduct concerned was either committed outside the territory of the designated state concerned or committed wholly or partly in the State, or

(f) the enforcement of the confiscation co-operation order, or the execution of the external confiscation order, as the case may be, is statute barred.

(2) Where the copy of the external confiscation order is not accompanied by the documents required under section 50(2), or is incomplete or does not correspond to the external confiscation order, the High Court—

(a) may permit the certified copy of the order, or a completed or corrected certified copy of the order, to be produced by or on behalf of the court concerned in accordance with a specified deadline, or

(b) shall refuse to make a confiscation co-operation order or, as the case may be, to execute the external confiscation order, unless it is satisfied, by the



production of an equivalent document or otherwise, that the information provided by or on behalf of the court concerned is sufficient.

(3) The High Court shall not make a confiscation co-operation order or, as the case may be, shall make an order refusing the execution of the external confiscation order if it is satisfied that the rights of any person holding an interest in the property the subject of the external confiscation order concerned make it impossible to execute that order.

(4) Where an external confiscation order is transmitted by or on behalf of a court in a designated state that is a member state, and the offence that resulted in the making of the order is an offence referred to in Article 6(1) of the 2006 Framework Decision punishable in that designated state by a maximum term of imprisonment of not less than 3 years, the High Court shall not make an order refusing the execution of the external confiscation order solely on the ground that the conduct constituting the offence that resulted in the making of that external confiscation order does not constitute an offence under the law of the State.]

PART 4A
FINANCIAL PENALTIES

F46[Refusal to execute external financial penalty order

60E. (1) On application made under section 60D(2) and without prejudice to section 3, the appropriate court shall make an order refusing the execution of an external financial penalty order made by an issuing judicial authority if—

(a) a financial penalty order has been made in the State against the defendant in respect of the conduct which resulted in the making of the external financial penalty order,

(b) a financial penalty order has been made in a state other than the issuing state or the State, in respect of the conduct which resulted in the making of the external financial penalty order, and has been executed,

(c) the conduct which resulted in the making of the external financial penalty order is not an offence in the State,



(d) the execution of the financial penalty order is statute barred in the State,
(e) the criminal conduct concerned was either committed outside the territory of the issuing state concerned or committed wholly or partly in the State,

(f) there is immunity or privilege under the law of the State which makes it impossible to execute the external financial penalty order,

(g) the defendant could not have been convicted in the State of an offence in respect of the conduct which resulted in the making of the external financial penalty order because of his or her age,

(h) the defendant did not appear in person at the proceedings resulting in the external financial penalty order, unless the certificate from the issuing judicial authority states that—

(i) he or she was summonsed to attend in person the proceedings, or he or she was otherwise made aware, by official notification, of the time when, and the place at which, those proceedings were to take place, and he or she was informed that an external financial penalty order could be made even if he or she did not appear,

(ii) he or she was aware of the proceedings concerned and was represented at those proceedings by a lawyer whom he or she appointed,

(iii) after having been served with the external financial penalty order and expressly informed of his or her right to a retrial or an appeal at which he or she would have been able to participate (and which would have been an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could have led to a reversal of the original decision, he or she—

(I) expressly stated that he or she did not contest the external financial penalty order, or

(II) did not request the retrial or appeal within the time limit for exercising that right,

or
(iv) where he or she was not personally served with the external financial penalty order, an undertaking has been given by the issuing state concerned that he or she will be personally served with the external financial penalty order without delay and will be expressly informed of his or her right to a retrial or an appeal in which he or she will be able to participate (and which will be an examination of the case on its merits, including the possibility of adducing fresh evidence), and which could lead to a reversal of the order, and of the time limit for exercising that right,

or
(i) the amount of the financial penalty the subject of the external financial penalty order is less than €70.

(2) If the certificate did not accompany the external financial penalty order, or is incomplete or manifestly does not correspond to the external financial penalty order, the appropriate court—

(a) may permit the certificate, or a completed or corrected certificate, to be produced by or on behalf of the court concerned in accordance with a speci- fied deadline, or



(b) may refuse to execute the external financial penalty order, unless it is satisfied, by the production of an equivalent document or otherwise, that the informa- tion provided by or on behalf of the court concerned is sufficient.]

Part 3
Requests by International Criminal Court for Arrest and Surrender of Persons

Section 25.—

(2) (a) The High Court shall adjourn the proceedings pending the outcome of—

(i) any challenge before the International Criminal Court to the admissibility of a case on grounds referred to in Article 17 or 89(2) or to that Court’s jurisdiction in the case, or

(ii) a challenge to admissibility made before the High Court on the basis of the principle of ne bis in idem, as provided for in Article 89(2),

and remand the arrested person in custody or, subject to section 26(2), on bail.

(b) The High Court shall cause the Minister to be informed of any challenge mentioned in paragraph (a) (ii).

(c) On being so informed, the Minister shall consult the International Criminal Court and then inform the High Court either—

(i) that there is an existing ruling of the International Criminal Court in relation to the admissibility of the case, or
(ii) that that Court is considering the challenge.

25.— (2) (a) The High Court shall adjourn the proceedings pending the outcome of—

(i) any challenge before the International Criminal Court to the admissibility of a case on grounds referred to in Article 17 or 89(2) or to that Court's jurisdiction in the case, or
(ii) a challenge to admissibility made before the High Court on the basis of the principle of ne bis in idem, as provided for in Article 89(2), and remand the arrested person in custody or, subject to section 26 (2) , on bail.

(b) The High Court shall cause the Minister to be informed of any challenge mentioned in paragraph (a) (ii) .

(c) On being so informed, the Minister shall consult the International Criminal Court and then inform the High Court either—

(i) that there is an existing ruling of the International Criminal Court in relationto the admissibility of the case, or
(ii) that that Court is considering the challenge.