knowledge 10 October 2019 |

Disputes – Investigations and White Collar Crime: Provision of Financial Information by way of Mutual Legal Assistance in Ireland

The Criminal Justice (Mutual Assistance) Act 2008 (“2008 Act”) deals with international cooperation by the Irish authorities in criminal matters. Requests can be made to Ireland for legal assistance for the purpose of criminal investigations or proceedings abroad. One particular aspect of this cooperation includes the sharing of information and monitoring of financial transactions.

The Minister for Justice and Equality is the Irish Central Authority and, for non police to police requests, is responsible for cooperating with corresponding bodies abroad in relation to requests for mutual assistance.

Under s15 of the 2008 Act, requests may be made for information in relation to any account(s) held in a financial institution in Ireland by a person who is the subject of a criminal investigation in a designated state abroad.

The request for information must include certain specific details:

• A statement that a specified offence has been committed in the designated state concerned and that the person mentioned in the request is the subject of an investigation into that offence;
• A statement that:

• any information that may be supplied in response to the request will not, without the Minister’s prior consent, be used for any purpose other than that specified in the request, and
• the record of any such information will be returned when no longer required for the purpose specified (or any other purpose for which consent has been obtained), unless the Minister indicates that its return is not required;

• Why the requesting authority considers that the requested information is likely to be of substantial value for the purposes of the investigation;
• Why the requesting authority considers that financial institution(s) in Ireland may hold the account(s) concerned;
• If available, the name(s) of the institution(s) concerned;
• The maximum period of imprisonment under the law of the designated state by which the offence is punishable; and
• Any other information that may facilitate compliance with the request.

If the Minister is of the opinion that the request complies with s15, he or she may authorise a senior member of An Garda Síochána (the Irish police force) to apply to the High Court for an account information or account monitoring order or both in relation to the requested information. The application is made in private and is not on notice to the owner of the targeted account(s) or the financial institution(s) concerned.

Before making the order, the court must be satisfied that:

• There are reasonable grounds for believing that an offence under the law of the designated state concerned has been committed;
• The person concerned is the subject of an investigation into that offence;
• The request is in accordance with the relevant international instrument concerned; and
• There are reasonable grounds for believing that the specified financial institution(s) may have information required for the purposes of the investigation.

Information ultimately disclosed by a financial institution in compliance with a court order here will be transmitted by the Irish Central Authority on behalf of the Minister to the requesting authority.

Under s21 of the 2008 Act, it is an offence for a financial institution to fail to comply with an order of the court without reasonable excuse or while purporting to comply, to make a statement which it knows to be false or misleading in a material particular, or recklessly to do so. The financial institution may also find itself in contempt of court. There is also a tipping off offence in s21. The consequences may be severe for a financial institution if found guilty on indictment of an offence under s21 as the institution is potentially exposed to an unlimited fine.

If a financial institution has any concerns about an order which has been made against it, it can apply to the court to vary or discharge the order. The application will be heard in private. However, the court will arrange for the competent authority in the designated state concerned to be notified of the application and the grounds for making it. This will enable that authority to submit any arguments that it deems necessary at the hearing of the application. It is also open to a senior member of An Garda Síochána to bring an application to vary or discharge an order, if the circumstances require.

Our Investigations and White Collar Crime Team have significant experience in advising clients on a variety of issues in and around cross-border crime as well as mutual legal assistance orders and would be pleased to provide further information. Alternatively, your usual contact in McCann FitzGerald would be happy to assist.